State v. Robertson

Court of Appeals of Oregon

State v. Robertson

134 P.3d 1112, 205 Or. App. 549, 2006 Ore. App. LEXIS 560

CourtCourt of Appeals of Oregon

DecidedMay 3, 2006

Docket02CR-1795; A122733

StatusPublished

Cited by1 cases

This text of 134 P.3d 1112 (State v. Robertson) 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. Robertson, 134 P.3d 1112, 205 Or. App. 549, 2006 Ore. App. LEXIS 560 (Or. Ct. App. 2006).

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Opinion

*550 PER CURIAM

After a trial to a jury, defendant was convicted of first-degree burglary, second-degree assault, fourth-degree assault, harassment, and interference with making a report. On the conviction for first-degree burglary, the trial court imposed a 144-month departure sentence, citing “persistent involvement in similar offenses,” defendant’s “lengthy record,” and the victim’s vulnerability.

On appeal, defendant argues that the trial court’s imposition of a departure sentence violated the principles enunciated 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 the sentence was based on aggravating facts that were not admitted by defendant nor found by a jury. Defendant did not advance that challenge below, but 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 reason set forth in Ramirez, we exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.

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*550 PER CURIAM

After a trial to a jury, defendant was convicted of first-degree burglary, second-degree assault, fourth-degree assault, harassment, and interference with making a report. On the conviction for first-degree burglary, the trial court imposed a 144-month departure sentence, citing “persistent involvement in similar offenses,” defendant’s “lengthy record,” and the victim’s vulnerability.

On appeal, defendant argues that the trial court’s imposition of a departure sentence violated the principles enunciated 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 the sentence was based on aggravating facts that were not admitted by defendant nor found by a jury. Defendant did not advance that challenge below, but 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 reason set forth in Ramirez, we exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.

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134 P.3d 1112, 205 Or. App. 549, 2006 Ore. App. LEXIS 560, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-robertson-orctapp-2006.

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