State v. Miller

Court of Appeals of Oregon

State v. Miller

131 P.3d 818, 204 Or. App. 685, 2006 Ore. App. LEXIS 317

CourtCourt of Appeals of Oregon

DecidedMarch 15, 2006

Docket03CR0112; A123020

StatusPublished

This text of 131 P.3d 818 (State v. Miller) 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. Miller, 131 P.3d 818, 204 Or. App. 685, 2006 Ore. App. LEXIS 317 (Or. Ct. App. 2006).

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Opinion

PER CURIAM

Defendant was convicted after a jury trial of failure to report as a sex offender. ORS 181.599. At sentencing, the trial court imposed an upward departure sentence on the grounds that defendant had persistently been involved in similar activity, that defendant had been on post-prison supervision at the time of the offense, and that defendant had multiple parole violations. On appeal, defendant raises several challenges to his conviction and sentence. We reject without discussion defendant’s challenges to his conviction. Regarding his sentence, 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 found by a jury or admitted by defendant, in violation of his rights under the Sixth Amendment to the United States Constitution.

Although defendant did not advance such a challenge to the trial court, he argues that the sentence should be reviewed as plain error. We agree. We have held that judicial factfinding on aggravating factors such as those runs afoul of the rule of law announced in Blakely. See, e.g., State v. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005) (concerning persistent involvement and on supervision departure factors). For the reason set forth in Perez, we exercise our discretion to correct the error.

Sentence vacated; remanded for resentencing; otherwise affirmed.

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PER CURIAM

Defendant was convicted after a jury trial of failure to report as a sex offender. ORS 181.599. At sentencing, the trial court imposed an upward departure sentence on the grounds that defendant had persistently been involved in similar activity, that defendant had been on post-prison supervision at the time of the offense, and that defendant had multiple parole violations. On appeal, defendant raises several challenges to his conviction and sentence. We reject without discussion defendant’s challenges to his conviction. Regarding his sentence, 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 found by a jury or admitted by defendant, in violation of his rights under the Sixth Amendment to the United States Constitution.

Although defendant did not advance such a challenge to the trial court, he argues that the sentence should be reviewed as plain error. We agree. We have held that judicial factfinding on aggravating factors such as those runs afoul of the rule of law announced in Blakely. See, e.g., State v. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005) (concerning persistent involvement and on supervision departure factors). For the reason set forth in Perez, we exercise our discretion to correct the error.

Sentence vacated; remanded for resentencing; otherwise affirmed.

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Bluebook (online)

131 P.3d 818, 204 Or. App. 685, 2006 Ore. App. LEXIS 317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-miller-orctapp-2006.

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