FILED: May 3, 2006

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

THOMAS GERALD ERICKSON,

Appellant.

03FE0823ST; A123652

Appeal from Circuit Court, Deschutes County.

Stephen N. Tiktin, Judge.

Submitted on record and briefs September 30, 2005.

Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, Legal  Services Division, and Louis R. Miles, Deputy Public Defender, 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 Edmonds, Presiding Judge, and Linder and Wollheim, Judges.

PER CURIAM

Sentences vacated; remanded for resentencing; otherwise affirmed.

PER CURIAM

After a jury trial, defendant was convicted of four counts of first-degree sodomy, ORS 163.405, five counts of sexual abuse, ORS 163.425, and one count of attempted rape, ORS 161.405 and ORS 163.375. On appeal, defendant challenges his sentences. We vacate and remand for resentencing but otherwise affirm.

On one of the convictions, the trial court imposed an upward departure sentence based on its findings that the victim was particularly vulnerable, that there was a violation of trust, and that there was significant cruelty or harm greater than typical. Defendant argues that the trial court's imposition of a departure sentence violated 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 aggravating facts that were not admitted by defendant nor found by a jury. Under our decision in State v. Ramirez, 205 Or App 113, ___ P3d ___ (2006), the sentence is plainly erroneous. For the reasons set forth in Ramirez, we exercise our discretion to correct the error. (1) 

Sentences vacated; remanded for resentencing; otherwise affirmed.


1. Because we remand the entire case for resentencing, ORS 138.222(5)(a), we need not address defendant's other assignment of error regarding his sentences.

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