State v. Vandervort

Court of Appeals of Oregon

State v. Vandervort

142 P.3d 482, 207 Or. App. 433, 2006 Ore. App. LEXIS 1207

CourtCourt of Appeals of Oregon

DecidedAugust 23, 2006

Docket0207244CR1; A125063

StatusPublished

Cited by1 cases

This text of 142 P.3d 482 (State v. Vandervort) 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. Vandervort, 142 P.3d 482, 207 Or. App. 433, 2006 Ore. App. LEXIS 1207 (Or. Ct. App. 2006).

Pincite

Opinion

PER CURIAM

After a trial to a jury, defendant was convicted of one count of first-degree arson, ORS 164.325, and one count of first-degree burglary, ORS 164.225. The trial court imposed an upward durational departure sentence of 60 months’ probation on the burglary conviction, based on its findings that the victim was particularly vulnerable, the offense had caused “harm greater than normal,” and defendant had engaged in “repetitive conduct.”

On appeal, defendant makes two assignments of error. Having waived his right to counsel and represented himself at trial, he first argues that his waiver of counsel was not knowing and voluntary because the trial court forced him to choose between proceeding to trial with his retained counsel or proceeding pro se. We reject that argument without discussion. Defendant also argues that the departure sentence violated the principles articulated 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 it was based on facts that were not admitted by defendant or found by a jury. Although defendant did not advance such a challenge below, he argues that the sentence should be reviewed as plain error. Under our decision in State v. Ramirez, 205 Or App 113, 133 P3d 343, adh’d to on recons, 207 Or App 1, 139 P3d 981 (2006), the sentence is plainly erroneous. For the reasons set forth in Ramirez, we 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

After a trial to a jury, defendant was convicted of one count of first-degree arson, ORS 164.325, and one count of first-degree burglary, ORS 164.225. The trial court imposed an upward durational departure sentence of 60 months’ probation on the burglary conviction, based on its findings that the victim was particularly vulnerable, the offense had caused “harm greater than normal,” and defendant had engaged in “repetitive conduct.”

On appeal, defendant makes two assignments of error. Having waived his right to counsel and represented himself at trial, he first argues that his waiver of counsel was not knowing and voluntary because the trial court forced him to choose between proceeding to trial with his retained counsel or proceeding pro se. We reject that argument without discussion. Defendant also argues that the departure sentence violated the principles articulated 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 it was based on facts that were not admitted by defendant or found by a jury. Although defendant did not advance such a challenge below, he argues that the sentence should be reviewed as plain error. Under our decision in State v. Ramirez, 205 Or App 113, 133 P3d 343, adh’d to on recons, 207 Or App 1, 139 P3d 981 (2006), the sentence is plainly erroneous. For the reasons set forth in Ramirez, we exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

142 P.3d 482, 207 Or. App. 433, 2006 Ore. App. LEXIS 1207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-vandervort-orctapp-2006.

Opinion

Related

Cite This Page — Counsel Stack