State v. Hilton

Court of Appeals of Oregon

State v. Hilton

135 P.3d 358, 205 Or. App. 669, 2006 Ore. App. LEXIS 614

CourtCourt of Appeals of Oregon

DecidedMay 10, 2006

Docket0007-35951; A124186

StatusPublished

This text of 135 P.3d 358 (State v. Hilton) 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. Hilton, 135 P.3d 358, 205 Or. App. 669, 2006 Ore. App. LEXIS 614 (Or. Ct. App. 2006).

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Opinion

PER CURIAM

Defendant was convicted of first-degree rape and third-degree rape after pleading no contest to those counts. He proceeded to trial on counts of felon in possession of a firearm and unlawful use of a weapon and, after a trial to a jury, was convicted on those counts. The trial court imposed an upward departure sentence on the conviction for felon in possession of a firearm based on the findings that defendant was on supervision at the time of the offense, that defendant’s prior incarcerations did not deter his illegal conduct, and that defendant was a dangerous offender. At sentencing, defendant objected to the imposition of the departure sentence on the ground that, under Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000), departure sentences may not be based on facts found by the sentencing court.

On appeal, defendant argues that the trial court’s imposition of a departure sentence on his conviction for felon in possession of a firearm violated the principles enunciated in Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004), and Apprendi, because the sentence was based on facts that were not admitted by defendant or found by a jury. The state concedes that defendant adequately preserved the argument that he now makes on appeal, and we agree. Defendant’s sentence is erroneous, and the case must be remanded for resentencing. State v. Dilts, 337 Or 645, 103 P3d 95 (2004).

Sentences vacated; remanded for resentencing; otherwise affirmed.

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PER CURIAM

Defendant was convicted of first-degree rape and third-degree rape after pleading no contest to those counts. He proceeded to trial on counts of felon in possession of a firearm and unlawful use of a weapon and, after a trial to a jury, was convicted on those counts. The trial court imposed an upward departure sentence on the conviction for felon in possession of a firearm based on the findings that defendant was on supervision at the time of the offense, that defendant’s prior incarcerations did not deter his illegal conduct, and that defendant was a dangerous offender. At sentencing, defendant objected to the imposition of the departure sentence on the ground that, under Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000), departure sentences may not be based on facts found by the sentencing court.

On appeal, defendant argues that the trial court’s imposition of a departure sentence on his conviction for felon in possession of a firearm violated the principles enunciated in Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004), and Apprendi, because the sentence was based on facts that were not admitted by defendant or found by a jury. The state concedes that defendant adequately preserved the argument that he now makes on appeal, and we agree. Defendant’s sentence is erroneous, and the case must be remanded for resentencing. State v. Dilts, 337 Or 645, 103 P3d 95 (2004).

Sentences vacated; remanded for resentencing; otherwise affirmed.

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Bluebook (online)

135 P.3d 358, 205 Or. App. 669, 2006 Ore. App. LEXIS 614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hilton-orctapp-2006.

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