FILED: December 7, 2005

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

MICHAEL ANTHONY CAPTAIN,

Appellant.

03C-42359; A123313

Appeal from Circuit Court, Marion County.

Albin W. Norblad, Judge.

Submitted on record and briefs August 31, 2005.

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

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Erika L. Hadlock, Assistant Solicitor General, filed the brief for respondent.

Before Haselton, Presiding Judge, and Armstrong and Rosenblum,* Judges.

PER CURIAM

Sentences vacated; remanded for resentencing; otherwise affirmed.

*Rosenblum, J., vice Ceniceros, S. J.

PER CURIAM

Defendant was convicted of attempted aggravated murder, ORS 163.095, first-degree rape, ORS 163.375, and second-degree assault, ORS 163.185. The trial court imposed a 30-year dangerous offender sentence on the attempted aggravated murder conviction and concurrent mandatory minimum sentences pursuant to ORS 137.700 on the rape and assault convictions. Defendant argues that, 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), the court erred in imposing a sentence on the attempted aggravated murder conviction that exceeds the statutory indeterminate sentences that may be imposed for that crime under ORS 161.605 based on facts not found by a jury or admitted by the defendant.

Although defendant did not advance such a challenge to the trial court, he argues that the sentence should be reviewed as plain error. Under our decision in State v. Warren, 195 Or App 656, 98 P3d 1129 (2004), the sentence is plainly erroneous. For the reason set forth in State v. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005), we exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.


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