State v. Mitchell

Court of Appeals of Oregon

State v. Mitchell

138 P.3d 60, 206 Or. App. 586, 2006 Ore. App. LEXIS 886

CourtCourt of Appeals of Oregon

DecidedJune 28, 2006

Docket03CR1988; A124651

StatusPublished

Cited by1 cases

This text of 138 P.3d 60 (State v. Mitchell) 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. Mitchell, 138 P.3d 60, 206 Or. App. 586, 2006 Ore. App. LEXIS 886 (Or. Ct. App. 2006).

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Opinion

*587 PER CURIAM

After a trial to a jury, defendant was convicted of attempted burglary in the first degree, ORS 161.405; ORS 164.225, menacing, ORS 163.190, and telephonic harassment, ORS 166.090. On the conviction for attempted burglary, the trial court imposed an upward durational departure sentence of 32 months’ imprisonment and 24 months’ post-prison supervision based on its finding that defendant had been persistently involved in similar offenses. On appeal, defendant argues that the departure sentence violates the principles articulated 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 reasons set forth in Ramirez, we exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.

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*587 PER CURIAM

After a trial to a jury, defendant was convicted of attempted burglary in the first degree, ORS 161.405; ORS 164.225, menacing, ORS 163.190, and telephonic harassment, ORS 166.090. On the conviction for attempted burglary, the trial court imposed an upward durational departure sentence of 32 months’ imprisonment and 24 months’ post-prison supervision based on its finding that defendant had been persistently involved in similar offenses. On appeal, defendant argues that the departure sentence violates the principles articulated 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 reasons set forth in Ramirez, we exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.

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138 P.3d 60, 206 Or. App. 586, 2006 Ore. App. LEXIS 886, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mitchell-orctapp-2006.

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