FILED: May 3, 2006
IN THE COURT OF APPEALS OF THE STATE OF OREGON
STATE OF OREGON,
Appeal from Circuit Court, Multnomah County.
Linda L. Bergman, Judge.
Argued and submitted April 4, 2006.
Andrew S. Chilton argued the cause for appellant. With him on the briefs was Chilton, Ebbett & Rohr, LLC.
Stacey R. J. Guise, 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 Wollheim, Presiding Judge, and Edmonds* and Linder, Judges.
Sentences vacated; remanded for resentencing; otherwise affirmed.
*Edmonds, J., vice Richardson, S. J.
After a trial to a jury, defendant was convicted on four counts of first-degree robbery and one count of second-degree assault. On appeal, defendant challenges his convictions on the ground that the trial court erred in accepting his waiver of counsel; we reject that challenge without discussion.
Defendant also challenges his sentences. On one of the convictions for first-degree robbery, the trial court imposed an upward departure sentence based on its findings that defendant had persistent involvement in assaultive behavior, that his actions escalated in violence, that he was on supervision at the time of the offense, and that he was not receptive to treatment. Defendant argues that the trial court's imposition of a departure sentence violated 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 sentence was based on aggravating facts that were not admitted by defendant or found by a jury. Defendant did not advance that challenge below, but argues that the sentence should be reviewed as plain error. Under our decision in State v. Ramirez, 205 Or App 113, ___ P3d ___ (2006), the sentence is plainly erroneous. For the reason set forth in Ramirez, we exercise our discretion to correct the error. (1)
Sentences vacated; remanded for resentencing; otherwise affirmed.;
1. Because we must remand the entire case for resentencing, ORS 138.222(5), we need not address defendant's alternative arguments regarding his sentences.
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