State v. Knoke

135 P.3d 357, 205 Or. App. 667, 2006 Ore. App. LEXIS 611

• Court: Court of Appeals of Oregon
• Decided: May 10, 2006
• Docket: 0102729CR; A121494
• Status: Published

Opinion

PER CURIAM

After a trial to a jury, defendant was convicted of second-degree assault. He received an upward departure sentence based on the trial court’s findings of “Permanent injury to victim; Harm and loss significantly greater than typical; Repetitive assaults unrelated to current crime; Lack of remorse; Assaults escalating in seriousness.” On appeal, defendant makes various challenges to his conviction; we reject those challenges without discussion.

Defendant also challenges his sentence. Defendant argues that the trial court’s imposition of a 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 the sentence was based on facts that were not admitted by defendant or found by a jury. Defendant did not advance that challenge below, but 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.¹

Sentence vacated; remanded for resentencing; otherwise affirmed.

1 Because we remand for resentencing, we need not address defendant’s alternative argument regarding his sentence.