Oregon Court of AppealsOct 11, 2006
208 Or. App. 670 (Or. Ct. App. 2006)
208 Or. App. 670145 P.3d 335

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    …October 3, 2008. Appeal from the ( 208 Or App 670). Petitions for Review…

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Nos. 03CR1662; A123290.

Submitted on record and briefs September 7, 2006.

October 11, 2006.

Appeal from Circuit Court, Coos County. Richard L. Barron, Judge.

Andrew S. Chilton and Chilton, Ebbett Rohr, LLC, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Erika L. Hadlock, Assistant Solicitor General, filed the brief for respondent.

Before Haselton, Presiding Judge, and Armstrong and Rosenblum, Judges.


Sentences vacated; remanded for resentencing; otherwise affirmed.

Defendant was convicted after a jury trial of second-degree assault, ORS 163.175, fourth-degree assault, ORS 163.160, unlawful use of a weapon, ORS 166.220, resisting arrest, ORS 162.315, interference with making a report, ORS 165.572, and harassment, ORS 166.065. On the second-degree assault conviction, the trial court imposed an upward durational departure sentence of 90 months' imprisonment, based on a finding that defendant had prior assault convictions arising out of other domestic violence incidents.

On appeal, defendant raises unpreserved arguments that the court should have merged certain convictions and that the imposition of the departure sentence violated 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 not based on facts admitted by defendant or found by the jury. We reject without discussion defendant's assertions concerning merger of convictions.

Under our decisions in State v. Steele, 205 Or App 469, 134 P3d 1054 (2006), and State v. Ramirez, 205 Or App 113, 133 P3d 343, adh'd to on recons, 207 Or App 1, 139 P3d 981 (2006), the imposition of the departure sentence constituted plain error. For the reasons set forth in Ramirez, we exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.