FILED: June 14, 2006

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

DONALD LEE HOWELL,

Appellant.

C002670CR; A115558

Appeal from Circuit Court, Washington County.

Gayle A Nachtigal, Judge.

Argued and submitted February 6, 2006 at University of Oregon, Eugene.

Andrew S. Chilton argued the cause for appellant. With him on the brief was Chilton, Ebbett & Rohr, LLC.

Carolyn Alexander, 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 Landau, Presiding Judge, and Schuman, Judge, and Mitchell, Judge pro tempore.

PER CURIAM

Sentences vacated; remanded for resentencing; otherwise affirmed.

PER CURIAM

After a trial to a jury, defendant was convicted of two counts of first-degree arson, ORS 164.325, and one count of first-degree criminal mischief, ORS 164.365. The trial court imposed an upward durational departure sentence on one of the arson convictions, based on its findings that the crime involved a "threat of actual violence" and that defendant had a history of "persistent involvement in similar offenses." The court also imposed a dispositional departure on the criminal mischief conviction.

On appeal, defendant first challenges his conviction, arguing that the trial court erred by denying a motion to suppress certain statements that he made to a police officer. We reject that challenge without discussion. Defendant also challenges his durational departure sentence on the arson conviction, arguing that the trial court's imposition of that 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 the departure was based on facts that were not admitted by defendant or found by a jury. Defendant concedes that he did not advance that challenge below, but 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 (2006), the sentence is plainly erroneous. For the reasons set forth in Ramirez, 208 Or App at 125, we exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.


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