State v. Langevin

Court of Appeals of Oregon

State v. Langevin

124 P.3d 1281, 203 Or. App. 395, 2005 Ore. App. LEXIS 1639

CourtCourt of Appeals of Oregon

DecidedDecember 21, 2005

Docket200221049; A123435

StatusPublished

This text of 124 P.3d 1281 (State v. Langevin) 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. Langevin, 124 P.3d 1281, 203 Or. App. 395, 2005 Ore. App. LEXIS 1639 (Or. Ct. App. 2005).

Pincite

Opinion

PER CURIAM

Defendant was convicted of three counts of assaulting a police officer and one count of escape in the second degree. On appeal, he initially argues that the trial court erred when it imposed consecutive sentences on two of the assault convictions, and reconstituted his criminal history score on one of the assault convictions. Defendant concedes that he did not preserve any of those issues at trial, but argues that they should be reviewed as plain error. State v. Fuerte-Coria, 196 Or App 170, 174, 100 P3d 773 (2004), rev den, 338 Or 16 (2005), and State v. Yashin, 199 Or App 511, 520, 112 P3d 331, rev den, 339 Or 407 (2005), are controlling on the above issues, and we reject his arguments without further discussion.

Defendant also makes an unpreserved challenge to the trial court’s imposition of upward departure sentences. He argues that the court’s upward departure sentences were erroneous under 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 they are based on facts that were not admitted by defendant nor found by a jury. Under our decision in State v. Allen, 198 Or App 392, 108 P3d 651, adh’d to on recons, 202 Or App 565, 123 P3d 331 (2005), the trial court’s upward departures, based on its finding that defendant was on probation at the time he committed these crimes, were plainly erroneous. For the reason set forth in Allen, we exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM

Defendant was convicted of three counts of assaulting a police officer and one count of escape in the second degree. On appeal, he initially argues that the trial court erred when it imposed consecutive sentences on two of the assault convictions, and reconstituted his criminal history score on one of the assault convictions. Defendant concedes that he did not preserve any of those issues at trial, but argues that they should be reviewed as plain error. State v. Fuerte-Coria, 196 Or App 170, 174, 100 P3d 773 (2004), rev den, 338 Or 16 (2005), and State v. Yashin, 199 Or App 511, 520, 112 P3d 331, rev den, 339 Or 407 (2005), are controlling on the above issues, and we reject his arguments without further discussion.

Defendant also makes an unpreserved challenge to the trial court’s imposition of upward departure sentences. He argues that the court’s upward departure sentences were erroneous under 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 they are based on facts that were not admitted by defendant nor found by a jury. Under our decision in State v. Allen, 198 Or App 392, 108 P3d 651, adh’d to on recons, 202 Or App 565, 123 P3d 331 (2005), the trial court’s upward departures, based on its finding that defendant was on probation at the time he committed these crimes, were plainly erroneous. For the reason set forth in Allen, we exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

124 P.3d 1281, 203 Or. App. 395, 2005 Ore. App. LEXIS 1639, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-langevin-orctapp-2005.

Opinion

Related

Cite This Page — Counsel Stack