State v. Morris

Court of Appeals of Oregon

State v. Morris

124 P.3d 1292, 203 Or. App. 541, 2005 Ore. App. LEXIS 1663

CourtCourt of Appeals of Oregon

DecidedDecember 28, 2005

Docket03C-42143; A122128

StatusPublished

Cited by1 cases

This text of 124 P.3d 1292 (State v. Morris) 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.

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State v. Morris, 124 P.3d 1292, 203 Or. App. 541, 2005 Ore. App. LEXIS 1663 (Or. Ct. App. 2005).

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Opinion

*542 PER CURIAM

Defendant was convicted of two counts of felony fourth-degree assault, ORS 163.160, and received consecutive upward departure sentences on those convictions. The court based the departure sentences on findings that prior probations and incarcerations had not deterred criminal behavior and that defendant had been persistently involved in similar offenses. 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 departure sentences 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 before the trial court, he argues that the sentences should be reviewed as plain error. We agree. We have held that judicial factfinding on aggravating factors such as those involved here 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); State v. Allen, 198 Or App 392, 108 P3d 651 (2005), adh’d to on recons, 202 Or App 565, 123 P3d 331 (2005). For the reason set forth in Perez, we exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.

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*542 PER CURIAM

Defendant was convicted of two counts of felony fourth-degree assault, ORS 163.160, and received consecutive upward departure sentences on those convictions. The court based the departure sentences on findings that prior probations and incarcerations had not deterred criminal behavior and that defendant had been persistently involved in similar offenses. 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 departure sentences 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 before the trial court, he argues that the sentences should be reviewed as plain error. We agree. We have held that judicial factfinding on aggravating factors such as those involved here 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); State v. Allen, 198 Or App 392, 108 P3d 651 (2005), adh’d to on recons, 202 Or App 565, 123 P3d 331 (2005). For the reason set forth in Perez, we exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.

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124 P.3d 1292, 203 Or. App. 541, 2005 Ore. App. LEXIS 1663, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-morris-orctapp-2005.

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