Opinion
C021083CR; A120123.
Submitted on record and briefs August 22, 2005.
October 19, 2005.
Appeal from Circuit Court, Washington County. Timothy P. Alexander, Judge.
Erin Galli Rohr and Chilton, Ebbett Rohr, LLC, filed the brief for appellant.
Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Christina M. Hutchins, Assistant Attorney General, filed the brief for respondent.
Before Landau, Presiding Judge, and Ortega, Judge, and Deits, Judge pro tempore.
PER CURIAM
Sentences vacated; remanded for resentencing; otherwise affirmed.
Defendant appeals from convictions for assault in the first degree, ORS 163.185, and unlawful use of a weapon, ORS 166.220. The trial court imposed upward departure sentences on both convictions, based on a finding that the crime involved a vulnerable victim. On appeal, defendant challenges only the sentences, arguing 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 facts that defendant did not admit and that the court did not submit to a jury. He concedes that he did not advance such a challenge to the trial court, but argues that the sentences should be reviewed as plain error. The state concedes that, under our decisions in State v. Gornick, 196 Or App 397, 102 P3d 734 (2004), rev allowed, 338 Or 583 (2005), and State v. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005), the sentences are plainly erroneous. We accept the state's concession and, for the reasons discussed in those cases, exercise our discretion to correct the error.
Sentences vacated; remanded for resentencing; otherwise affirmed.