Opinion
011238675; A121384.
Submitted on record and briefs September 30, 2005.
November 16, 2005. Petition for review denied March 7, 2006.
Appeal from Circuit Court, Multnomah County. Richard C. Baldwin, Judge.
Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, and Louis R. Miles, Deputy Public Defender, Office of Public Defense Services, filed the opening brief for appellant. Louis R. Miles filed the supplemental brief.
Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Anna M. Joyce, Assistant Attorney General, filed the brief for respondent.
Before Edmonds, Presiding Judge, and Linder and Wollheim, Judges.
PER CURIAM
Sentence vacated; remanded for resentencing; otherwise affirmed.
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.
Given the scope of our remand under ORS 138.222(5), we need not address defendant's other challenges to his sentence.
Sentence vacated; remanded for resentencing; otherwise affirmed.