Opinion
Nos. 030917; A125121.
Argued and submitted April 5, 2007.
July 24, 2007.
Appeal from the Lincoln County Circuit Court, Thomas O. Branford, Judge.
George W. Kelly argued the cause and filed the brief for appellant.
Denise G. Fjordbeck, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.
Before Wollheim, Presiding Judge, and Landau and Ortega, Judges.
PER CURIAM
Sentences vacated; remanded for resentencing; otherwise affirmed.
After a trial to a jury, defendant was convicted on two counts of first-degree sodomy, ORS 163.405. On one of the counts, the court imposed a sentence of 130 months' imprisonment. On the other count, the court imposed an upward departure sentence of 240 months' imprisonment based on its findings that defendant was not amenable to rehabilitation and that the victim was particularly vulnerable.
On appeal, defendant asserts various challenges to his convictions. We reject those arguments without discussion. Defendant also argues that the departure sentence violates the Sixth Amendment under 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), rev allowed, 342 Or 256 (2007), 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.