State v. Johnson

136 P.3d 71, 206 Or. App. 227, 2006 Ore. App. LEXIS 729

Opinion

PER CURIAM

After a trial to a jury, defendant was convicted of first-degree robbery with a firearm, first-degree burglary, and second-degree assault. On the conviction for first-degree robbery with a firearm, the trial court imposed a durational departure sentence of 120 months’ imprisonment and 36 months’ post-prison supervision based on its findings that defendant was on supervision at the time of the offense and that the crimes escalated in nature. On appeal, defendant argues that the departure sentence violated the principles enunciated 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 reason set forth in Ramirez, we exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.