FILED: August 31, 2005

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

EARLE MATTHEW COURTNEY,

Appellant.

03C-47021; A123627

Appeal from Circuit Court, Marion County.

Susan M. Tripp, Judge.

Submitted on record and briefs July 28, 2005.

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

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Jonathan H. Fussner, Attorney-In-Charge, Criminal Appeals Unit, filed the brief for respondent.

Before Landau, Presiding Judge, and Schuman* and Ortega, Judges.

PER CURIAM

Sentence vacated; remanded for resentencing; otherwise affirmed.

*Schuman, J., vice Richardson, S. J.

PER CURIAM

Defendant was convicted of supplying contraband. ORS 162.185. The trial court imposed an upward durational departure sentence based on a finding of lack of respect for the law. The court also ordered under ORS 137.750 and ORS 137.752 that defendant not be considered for early release or sentence reductions. On appeal, defendant challenges only the sentence.

He first 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 departure sentence based on facts that defendant did not admit and that the court did not submit to a jury. He concedes that he did not advance such a challenge to the trial court, but argues that the sentence should be reviewed as plain error. The state concedes that, under our decisions in State v. Gornick, 196 Or App 397, 102 P3d 734 (2004), rev allowed, 338 Or 583 (2005), and State v. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005), the sentence is plainly erroneous. We accept the state's concession and, for the reasons discussed in those cases, exercise our discretion to correct the error.

He also advances an unpreserved argument that, under Blakely and Apprendi, the trial court erred in ordering that he not be considered for early release and sentence reductions. State v. Vigil, 197 Or App 407, 106 P3d 656, adh'd to on recons, 199 Or App 525, 112 P3d 441, rev pending (2005), in which we concluded that such an order is not plainly erroneous, is controlling.

Sentence vacated; remanded for resentencing; otherwise affirmed.


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