State v. Spikes

120 P.3d 1258, 202 Or. App. 229, 2005 Ore. App. LEXIS 1324

Opinion

PER CURIAM

Defendant was convicted of manufacture of a controlled substance, ORS 475.992, delivery of a controlled substance within 1,000 feet of a school, ORS 475.999, multiple counts of unlawful possession of precursor chemicals, ORS 475.973, and endangering the welfare of a minor, ORS 163.575. The trial court imposed an upward departure sentence on the conviction for delivery of a controlled substance within 1,000 feet of a school, based on a finding that defendant had persistently been involved in similar offenses. 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 not found by a jury or admitted by defendant.

Although defendant did not advance such a challenge to the trial court, he argues that the sentence should be reviewed as plain error. Under our decision in State v. Ross, 196 Or App 420, 102 P3d 755 (2004), the sentences are plainly erroneous. For the reason set forth in State v. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005), we exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.