FILED: March 15, 2006

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

KENNETH LEE DEHUT,

Appellant.

03C-44670; A124718

Appeal from Circuit Court, Marion County.

Claudia M. Burton, Judge.

Submitted on record and briefs January 31, 2006.

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

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Doug M. Petrina, Assistant Attorney General, filed the brief for respondent.

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

PER CURIAM

Sentence vacated; remanded for resentencing; otherwise affirmed.

PER CURIAM

Defendant was convicted after a jury trial of being an inmate in possession of a weapon. ORS 166.275. The trial court imposed a departure sentence of 60 months' imprisonment based on findings that defendant had persistently been involved in similar offenses and that prior sanctions had not deterred defendant's criminal conduct. On appeal, 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 that sentence based on facts that were not found by a jury or admitted by defendant, in violation of his rights under the Sixth Amendment to the United States Constitution.

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. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005), the sentence is plainly erroneous. For the reason set forth in Perez, we exercise our discretion to correct the error.

Sentence vacated; remanded for resentencing; otherwise affirmed.


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