State v. Williams

123 P.3d 376, 202 Or. App. 659, 2005 Ore. App. LEXIS 1493

Opinion

PER CURIAM

Defendant was convicted of rape and received an upward departure sentence of 108 months’ imprisonment. On appeal, defendant challenges both his conviction and sentence. We reject defendant’s challenges to his conviction without discussion.

With respect to his sentence, defendant argues that the court’s upward departure was erroneous 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), because it was based on facts that were not admitted by defendant nor 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. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005), the trial court’s upward departure — based on its findings that the victim was particularly vulnerable and that the harm to her was significantly greater than typical — is plainly erroneous. For the reason set forth in Perez, we exercise our discretion to correct the error.¹

Sentence vacated; remanded for resentencing; otherwise affirmed.

1 Given the scope of our remand under ORS 138.222(5), we need not address defendant’s other challenges to his sentence.