Opinion
20-03-01146; A121819.
Submitted on record and briefs August 31, 2005.
October 12, 2005.
Appeal from Circuit Court, Lane County. Maurice K. Merten, Judge.
Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, and Rebecca Duncan, Chief Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Janet A. Klapstein, Assistant Attorney General, filed the brief for respondent.
PER CURIAM
Sentences vacated; remanded for resentencing; otherwise affirmed.
Defendant was convicted of attempting to elude a police officer, ORS 811.540, reckless driving, ORS 811.140, two counts of third-degree assault, ORS 163.165, second-degree criminal mischief, ORS 163.364, possession of a controlled substance, ORS 475.992, and resisting arrest, ORS 162.315. The trial court imposed departure sentences for a number of the offenses, based on a finding of persistent involvement 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 departure sentences based on a fact that was not admitted by the defendant or found by a jury.
Although defendant did not advance such a challenge to the trial court, he argues that the sentences 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 sentences are plainly erroneous. For the reason set forth in Perez, we exercise our discretion to correct the error.
Sentences vacated; remanded for resentencing; otherwise affirmed.