FILED: May 10, 2006

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

DONALD W. KNOKE,

Appellant.

0102729CR; A121494

Appeal from Circuit Court, Klamath County.

Cameron Wogan, Judge.

Submitted on record and briefs March 24, 2006.

Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, and Rebecca Duncan, Chief Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Janet A. Klapstein, Assistant Attorney General, filed the brief for respondent.

Before Edmonds, Presiding Judge, and Wollheim, Judge, and Deits, Judge pro tempore.

PER CURIAM

Sentence vacated; remanded for resentencing; otherwise affirmed.

PER CURIAM

After a trial to a jury, defendant was convicted of second-degree assault. He received an upward departure sentence based on the trial court's findings of "Permanent injury to victim; Harm and loss significantly greater than typical; Repetitive assaults unrelated to current crime; Lack of remorse; Assaults escalating in seriousness." On appeal, defendant makes various challenges to his conviction; we reject those challenges without discussion. 

Defendant also challenges his sentence. Defendant argues that the trial court's imposition of a departure sentence violated the principles enunciated 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 sentence was based on 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)

Sentence vacated; remanded for resentencing; otherwise affirmed.


1. Because we remand for resentencing, we need not address defendant's alternative argument regarding his sentence.

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