FILED: January 4, 2006

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

DWAYNE ALLEN HUMBERT,

Appellant.

02C-50561; A124690

Appeal from Circuit Court, Marion County.

Joseph C. Guimond, Judge.

Submitted on record and brief November 23, 2005.

Jason E. Thompson, and Ferder Casebeer & French LLP filed the brief for appellant.

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

Before Edmonds, Presiding Judge, and Brewer, Chief Judge, and Wollheim, Judge.

PER CURIAM

Sentences vacated; remanded for resentencing; otherwise affirmed.

PER CURIAM

Defendant appeals from a conviction for six counts of sodomy in the first degree, ORS 163.405. The trial court imposed upward departure sentences on the fourth, fifth, and sixth counts, based on findings that defendant engaged in persistent involvement in similar offenses, the victim was particularly vulnerable, and defendant had caused permanent injury to the victim. On appeal, defendant challenges only the sentences for those counts, 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 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), are controlling. 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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