State v. Russell

134 P.3d 1111, 205 Or. App. 561, 2006 Ore. App. LEXIS 575

Opinion

PER CURIAM

After a jury trial, defendant was convicted of one count of theft in the first degree (receiving) and one count of theft in the first degree. The trial court merged the convictions for purposes of sentencing and imposed a 21-month sentence, which was an upward durational departure from 13 months, the presumptive sentence under ORS 137.717 (repeat property offender). The departure was based on defendant’s persistent involvement in criminal activity and on the fact that he committed the crimes while on supervision. On appeal, defendant contends that his sentence is unlawful under Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004). He acknowledges that he did not preserve his claim of error but urges us to exercise our discretion to review the sentence as plain error on the face of the record. ORAP 5.45.

This case is controlled by 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.

Sentence vacated; remanded for resentencing; otherwise affirmed.