State v. Munguia

Court of Appeals of Oregon

State v. Munguia

147 P.3d 350, 209 Or. App. 240, 2006 Ore. App. LEXIS 1766

CourtCourt of Appeals of Oregon

DecidedNovember 8, 2006

Docket02C54709; A124997

StatusPublished

This text of 147 P.3d 350 (State v. Munguia) 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. Munguia, 147 P.3d 350, 209 Or. App. 240, 2006 Ore. App. LEXIS 1766 (Or. Ct. App. 2006).

Pincite

Opinion

PER CURIAM

Following a jury trial, defendant was convicted of identity theft, ORS 165.800. The trial court imposed an upward durational departure sentence on defendant’s conviction, based on its own findings that defendant had an extensive criminal history, that defendant was on probation at the time of the offense, and that prior sanctions had failed to deter her criminal behavior. The court also ordered that defendant not be considered for sentence modification programs, ORS 137.750, and ordered defendant to pay restitution.

On appeal, defendant challenges aspects of her conviction and her sentence. We reject her arguments about her conviction without discussion. With respect to the constitutionality of her departure 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 trial court erred in imposing a departure sentence based on its own findings that she had an extensive criminal background, that she was on probation at the time of the offense, and that prior sanctions had failed to deter her criminal behavior. Defendant concedes that she failed to preserve her assignments of error, but argues that the sentence should be reviewed as plain error.

During sentencing, a defendant is entitled to have a jury determine aggravating factors such as a defendant’s involvement in similar offenses and whether a defendant was on probation at the time of the offense. State v. Steele, 205 Or App 469, 471, 134 P3d 1054 (2006) (explaining that aggravating factors such as persistent involvement in similar offenses and being on probation at the time of the offense involve inferences about a defendant’s character and ability to be deterred, and a defendant is entitled to have a jury determine whether those inferences are appropriate). Because defendant did not waive her right to have a jury determine her aggravating factors, under our reasoning in State v. Ramirez, 205 Or App 113, 133 P3d 343, adh’d to on recons, 207 Or App 1,139 P3d 981 (2006), the sentence is plainly erroneous. For [242]*242the reasons set forth in Ramirez, we exercise our discretion to correct the error.¹

Sentence vacated; remanded for resentencing; otherwise affirmed.

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

PER CURIAM

Following a jury trial, defendant was convicted of identity theft, ORS 165.800. The trial court imposed an upward durational departure sentence on defendant’s conviction, based on its own findings that defendant had an extensive criminal history, that defendant was on probation at the time of the offense, and that prior sanctions had failed to deter her criminal behavior. The court also ordered that defendant not be considered for sentence modification programs, ORS 137.750, and ordered defendant to pay restitution.

On appeal, defendant challenges aspects of her conviction and her sentence. We reject her arguments about her conviction without discussion. With respect to the constitutionality of her departure 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 trial court erred in imposing a departure sentence based on its own findings that she had an extensive criminal background, that she was on probation at the time of the offense, and that prior sanctions had failed to deter her criminal behavior. Defendant concedes that she failed to preserve her assignments of error, but argues that the sentence should be reviewed as plain error.

During sentencing, a defendant is entitled to have a jury determine aggravating factors such as a defendant’s involvement in similar offenses and whether a defendant was on probation at the time of the offense. State v. Steele, 205 Or App 469, 471, 134 P3d 1054 (2006) (explaining that aggravating factors such as persistent involvement in similar offenses and being on probation at the time of the offense involve inferences about a defendant’s character and ability to be deterred, and a defendant is entitled to have a jury determine whether those inferences are appropriate). Because defendant did not waive her right to have a jury determine her aggravating factors, under our reasoning in State v. Ramirez, 205 Or App 113, 133 P3d 343, adh’d to on recons, 207 Or App 1,139 P3d 981 (2006), the sentence is plainly erroneous. For [242]*242the reasons set forth in Ramirez, we exercise our discretion to correct the error.¹

Sentence vacated; remanded for resentencing; otherwise affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

147 P.3d 350, 209 Or. App. 240, 2006 Ore. App. LEXIS 1766, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-munguia-orctapp-2006.

Opinion

Related

Cite This Page — Counsel Stack