FILED: August 31, 2005

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

ROBERT LEE WILLIAMS,

Appellant.

0308-33769; A123892

Appeal from Circuit Court, Multnomah County.

Sidney A. Galton, Judge.

Submitted on record and briefs July 28, 2005.

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

Hardy Myers, Attorney General, and 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

Sentences vacated; remanded for resentencing; otherwise affirmed.

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

PER CURIAM

Defendant pleaded guilty to one count of robbery in the third degree, ORS 164.395, one count of possession of a controlled substance, ORS 475.992, and one count of misdemeanor assault in the fourth degree, ORS 163.160. The trial court imposed an upward durational departure sentence on the robbery conviction, based on a finding that defendant was on supervision when he committed the offenses. On appeal, defendant challenges only the sentences, arguing 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 departure sentences 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 sentences should be reviewed as plain error. The state concedes that, under our decisions in State v. Fuerte-Coria, 196 Or App 170, 100 P3d 773 (2004), rev den, 338 Or 16 (2005), and State v. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005), the sentences are plainly erroneous. We accept the state's concession and, for the reasons discussed in those cases, exercise our discretion to correct the error. 

Sentences vacated; remanded for resentencing; otherwise affirmed.


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