State v. Fanning

Court of Appeals of Oregon

State v. Fanning

138 P.3d 61, 206 Or. App. 584, 2006 Ore. App. LEXIS 885

CourtCourt of Appeals of Oregon

DecidedJune 28, 2006

Docket04CR0143, 04CR0359 A124507 (Control), A124508

StatusPublished

Cited by1 cases

This text of 138 P.3d 61 (State v. Fanning) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Fanning, 138 P.3d 61, 206 Or. App. 584, 2006 Ore. App. LEXIS 885 (Or. Ct. App. 2006).

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Opinion

*585 PER CURIAM

After a trial to a jury, defendant was convicted of, among other offenses, one count of second-degree burglary, ORS 164.215. The court imposed an upward dispositional and durational departure sentence of 12 months’ imprisonment and 12 months’ post-prison supervision on the burglary conviction, based on its findings that defendant was on probation at the time of the offense and that defendant had “completely avoided efforts to rehabilitate himself.” On appeal, defendant argues that the departure sentence violates the principles articulated in Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004), and Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000), because it was based on facts that were not admitted by defendant or found by a jury. Although defendant did not advance such a challenge below, he argues that the sentence should be reviewed as plain error. Under our decision in State v. Ramirez, 205 Or App 113, 133 P3d 343 (2006), the sentence is plainly erroneous. For the reasons set forth in Ramirez, we exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.

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*585 PER CURIAM

After a trial to a jury, defendant was convicted of, among other offenses, one count of second-degree burglary, ORS 164.215. The court imposed an upward dispositional and durational departure sentence of 12 months’ imprisonment and 12 months’ post-prison supervision on the burglary conviction, based on its findings that defendant was on probation at the time of the offense and that defendant had “completely avoided efforts to rehabilitate himself.” On appeal, defendant argues that the departure sentence violates the principles articulated in Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004), and Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000), because it was based on facts that were not admitted by defendant or found by a jury. Although defendant did not advance such a challenge below, he argues that the sentence should be reviewed as plain error. Under our decision in State v. Ramirez, 205 Or App 113, 133 P3d 343 (2006), the sentence is plainly erroneous. For the reasons set forth in Ramirez, we exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.

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138 P.3d 61, 206 Or. App. 584, 2006 Ore. App. LEXIS 885, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fanning-orctapp-2006.

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