FILED: May 3, 2006

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

JAMES PATRICK WELLS,

Appellant.

200307068; A122963

Appeal from Circuit Court, Lane County.

Charles D. Carlson, Judge.

Submitted on record and briefs March 24, 2006.

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

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General and Robert M. Atkinson, Senior Assistant Attorney General, filed the brief for respondent.

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

PER CURIAM

Affirmed.

PER CURIAM

After a trial to a jury, defendant was convicted of first-degree burglary and second-degree theft. On the conviction for first-degree burglary, defendant received a sentence under ORS 137.717 of 19 months' imprisonment based on a prior conviction for first-degree burglary; on the conviction for second-degree theft, defendant received a sentence of 60 days in jail, to run concurrently with his 19-month sentence.

On appeal, defendant argues that the trial court's imposition of an ORS 137.717 sentence based on a prior conviction 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 it 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. Our decision in State v. Yashin, 199 Or App 511, 112 P3d 331, rev den, 122 P3d 65 (2005), is controlling.

Affirmed.


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