FILED: November 16, 2005

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

TRACY STEVEN WISE,

Appellant.

20-02-25723; A121787

Appeal from Circuit Court, Lane County.

Maurice K. Merten, Judge.

Submitted on record and briefs September 30, 2005.

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

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Rolf C. Moan, Assistant Attorney General, filed the brief for respondent.

Before Edmonds, Presiding Judge, and Linder and Wollheim, Judges.

PER CURIAM

Sentences vacated; remanded for resentencing; otherwise affirmed.

PER CURIAM

Defendant was convicted of driving under the influence of intoxicants, ORS 813.010(4), reckless driving, ORS 811.140, criminal mischief in the second degree, ORS 164.354, driving while suspended, ORS 811.182(4), attempt to elude a police officer, ORS 811.540(1)(b), and two counts of possession of a controlled substance, ORS 475.992(4)(b). On appeal, he first argues that the trial court abused its discretion when it denied his request for substitute appointed counsel. We reject defendant's arguments on that issue without discussion.

Defendant also challenges the trial court's imposition of an upward departure sentence on his conviction of possession of a controlled substance. He 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 finding that defendant had engaged in "persistent similar offenses"--is plainly erroneous. For the reason set forth in Perez, we exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.


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