State v. Niko

Court of Appeals of Oregon

State v. Niko

118 P.3d 851, 201 Or. App. 395, 2005 Ore. App. LEXIS 1151

CourtCourt of Appeals of Oregon

DecidedAugust 31, 2005

Docket02750; A123250

StatusPublished

Cited by1 cases

This text of 118 P.3d 851 (State v. Niko) 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. Niko, 118 P.3d 851, 201 Or. App. 395, 2005 Ore. App. LEXIS 1151 (Or. Ct. App. 2005).

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Opinion

PER CURIAM

Defendant was convicted of burglary in the first degree. ORS 164.225. The trial court imposed an upward durational departure sentence based on findings that the victim was especially vulnerable and that defendant had violated a position of trust. On appeal, defendant challenges only the sentence, arguing 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 defendant did not admit and that the com! did not submit to a jury. He concedes that he did not advance such a challenge to the trial court, but argues that the sentence should be reviewed as plain error. The state concedes that, under our decisions in State v. Gornick, 196 Or App 397, 102 P3d 734 (2004), rev allowed, 338 Or 583 (2005), and State v. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005), the sentence is plainly erroneous. We accept the state’s concession and, for the reasons discussed in those cases, exercise our discretion to correct the error.

Sentence vacated; remanded for resentencing; otherwise affirmed.

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PER CURIAM

Defendant was convicted of burglary in the first degree. ORS 164.225. The trial court imposed an upward durational departure sentence based on findings that the victim was especially vulnerable and that defendant had violated a position of trust. On appeal, defendant challenges only the sentence, arguing 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 defendant did not admit and that the com! did not submit to a jury. He concedes that he did not advance such a challenge to the trial court, but argues that the sentence should be reviewed as plain error. The state concedes that, under our decisions in State v. Gornick, 196 Or App 397, 102 P3d 734 (2004), rev allowed, 338 Or 583 (2005), and State v. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005), the sentence is plainly erroneous. We accept the state’s concession and, for the reasons discussed in those cases, exercise our discretion to correct the error.

Sentence vacated; remanded for resentencing; otherwise affirmed.

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Bluebook (online)

118 P.3d 851, 201 Or. App. 395, 2005 Ore. App. LEXIS 1151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-niko-orctapp-2005.

Opinion

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