State v. Frazey

Court of Appeals of Oregon

State v. Frazey

125 P.3d 31, 203 Or. App. 122, 2005 Ore. App. LEXIS 1556

CourtCourt of Appeals of Oregon

DecidedDecember 7, 2005

Docket0307-33540; A124084

StatusPublished

Cited by3 cases

This text of 125 P.3d 31 (State v. Frazey) 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. Frazey, 125 P.3d 31, 203 Or. App. 122, 2005 Ore. App. LEXIS 1556 (Or. Ct. App. 2005).

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Opinion

*123 PER CURIAM

Defendant was convicted of robbery in the first degree, ORS 164.415, assault in the second degree, ORS 163.175, animal abuse in the second degree, ORS 167.315, and tampering with a witness, ORS 162.285. On appeal, defendant challenges the trial court’s imposition of an upward departure sentence on his conviction for robbery in the first degree. He argues that the court’s upward departure was erroneous under Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004), because it was based on facts that were not admitted by defendant nor 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. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005), the trial court’s upward departure — based on its findings that defendant was “on supervision at time of offense” and that “repeated periods of incarceration have failed to deter defendant” — is plainly erroneous. For the reason set forth in Perez, we exercise our discretion to correct the error. See also State v. Allen, 198 Or App 392, 108 P3d 651, adh’d to on recons, 202 Or App 565, 123 P3d 331 (2005).

Sentences vacated; remanded for resentencing; otherwise affirmed.

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*123 PER CURIAM

Defendant was convicted of robbery in the first degree, ORS 164.415, assault in the second degree, ORS 163.175, animal abuse in the second degree, ORS 167.315, and tampering with a witness, ORS 162.285. On appeal, defendant challenges the trial court’s imposition of an upward departure sentence on his conviction for robbery in the first degree. He argues that the court’s upward departure was erroneous under Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004), because it was based on facts that were not admitted by defendant nor 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. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005), the trial court’s upward departure — based on its findings that defendant was “on supervision at time of offense” and that “repeated periods of incarceration have failed to deter defendant” — is plainly erroneous. For the reason set forth in Perez, we exercise our discretion to correct the error. See also State v. Allen, 198 Or App 392, 108 P3d 651, adh’d to on recons, 202 Or App 565, 123 P3d 331 (2005).

Sentences vacated; remanded for resentencing; otherwise affirmed.

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125 P.3d 31, 203 Or. App. 122, 2005 Ore. App. LEXIS 1556, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-frazey-orctapp-2005.

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