State v. Lee

123 P.3d 378, 202 Or. App. 665, 2005 Ore. App. LEXIS 1503

Opinion

PER CURIAM

Defendant was convicted of second-degree assault, ORS 163.175, attempted first-degree assault, ORS 161.405 and ORS 163.185, coercion, ORS 163.275, and unlawful use of a weapon, ORS 166.220. On the conviction for second-degree assault, the court imposed an upward departure sentence of 144 months’ imprisonment and 36 months’ post-prison supervision based on its findings that defendant was persistently involved in similar offenses and incarceration and probation had not deterred his conduct. On appeal, defendant argues that, 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), the court erred in imposing a departure sentence 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 sentence is plainly erroneous. For the reason set forth in Perez, we exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.