FILED: May 3, 2006

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

ALLEN ROYCE RUSSELL,

Appellant.

0402-31058; A125050

Appeal from Circuit Court, Multnomah County.

Henry Kantor, Judge.

Submitted on record and briefs February 27, 2006.

Jay Edwards filed the brief for appellant.

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

Before Schuman, Presiding Judge, and Brewer, Chief Judge, and Edmonds, Judge.*

PER CURIAM

Sentence vacated; remanded for resentencing; otherwise affirmed.

*Edmonds, J., vice Richardson, S. J.

PER CURIAM

After a jury trial, defendant was convicted of one count of theft in the first degree (receiving) and one count of theft in the first degree. The trial court merged the convictions for purposes of sentencing and imposed a 21-month sentence, which was an upward durational departure from 13 months, the presumptive sentence under ORS 137.717 (repeat property offender). The departure was based on defendant's persistent involvement in criminal activity and on the fact that he committed the crimes while on supervision. On appeal, defendant contends that his sentence is unlawful under Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004). He acknowledges that he did not preserve his claim of error but urges us to exercise our discretion to review the sentence as error plain on the face of the record. ORAP 5.45.

This case is controlled by State v. Ramirez, ___ Or App ___, ___ P3d ___ (Apr 12, 2006). The sentence is plainly erroneous. For the reason set forth in Ramirez, we exercise our discretion to correct the error.

Sentence vacated; remanded for resentencing; otherwise affirmed.


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