State v. Nyquist

Court of Appeals of Oregon

State v. Nyquist

120 P.3d 1292, 202 Or. App. 325, 2005 Ore. App. LEXIS 1354

CourtCourt of Appeals of Oregon

DecidedOctober 19, 2005

Docket02112562; A121281

StatusPublished

Cited by1 cases

This text of 120 P.3d 1292 (State v. Nyquist) 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. Nyquist, 120 P.3d 1292, 202 Or. App. 325, 2005 Ore. App. LEXIS 1354 (Or. Ct. App. 2005).

Pincite

Opinion

PER CURIAM

Defendant appeals from convictions for unlawful use of a weapon, ORS 166.220, felon in possession of a firearm, ORS 166.270, and assault in the first degree with a firearm, ORS 163.185; ORS 161.610. He makes two assignments of error. First, defendant assigns error to the trial court’s decision to admit certain hearsay testimony. Second, defendant assigns error to the court’s imposition of an upward durational departure sentence.

We reject defendant’s first assignment of error without discussion.

In his second assignment of error, defendant challenges the trial court’s imposition of an upward durational departure sentence on the assault conviction, based on a finding of persistent involvement. 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 defendant did not admit and that the court did not submit to a jury. He concedes that he did not advance such a challenge to the trial court, but argues that the sentences 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 sentences are plainly erroneous. We accept the state’s concession and, for the reasons discussed in those cases, exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.

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

PER CURIAM

Defendant appeals from convictions for unlawful use of a weapon, ORS 166.220, felon in possession of a firearm, ORS 166.270, and assault in the first degree with a firearm, ORS 163.185; ORS 161.610. He makes two assignments of error. First, defendant assigns error to the trial court’s decision to admit certain hearsay testimony. Second, defendant assigns error to the court’s imposition of an upward durational departure sentence.

We reject defendant’s first assignment of error without discussion.

In his second assignment of error, defendant challenges the trial court’s imposition of an upward durational departure sentence on the assault conviction, based on a finding of persistent involvement. 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 defendant did not admit and that the court did not submit to a jury. He concedes that he did not advance such a challenge to the trial court, but argues that the sentences 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 sentences are plainly erroneous. We accept the state’s concession and, for the reasons discussed in those cases, exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

120 P.3d 1292, 202 Or. App. 325, 2005 Ore. App. LEXIS 1354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-nyquist-orctapp-2005.

Opinion

Related

Cite This Page — Counsel Stack