FILED: March 8, 2006
IN THE COURT OF APPEALS OF THE STATE OF OREGON
STATE OF OREGON,
TOM MCNEILL GEORGE,
Appeal from Circuit Court, Jackson County.
William G. Purdy, Judge.
Submitted on record and briefs November 30, 2005.
Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, and Tammy W. Sun, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Joanna L. Jenkins, Assistant Attorney General, filed the brief for respondent.
Before Landau, Presiding Judge, and Schuman and Ortega, Judges.
In two consolidated cases, defendant pleaded guilty to one count of felon in possession of a firearm and two counts of misdemeanor driving under the influence of intoxicants (DUII). ORS 161.270; ORS 813.010. The trial court sentenced defendant to 21 months' incarceration on the felon in possession conviction. Pursuant to ORS 137.750, the court also ordered that defendant not be considered for sentence modifications on that sentence, other than sentence reductions under ORS 421.121.
On appeal, defendant argues that the police officer who arrested him for DUII lacked objective probable cause to do so and that the trial court therefore erred in denying his motion to suppress the resulting evidence. (1) We reject that argument without discussion. Defendant also argues that the trial court erred in denying him consideration for sentence modifications based on facts not found by a jury or admitted by him, in violation of the principles enunciated in 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 (2000). He concedes that he failed to raise that issue below but urges us to address it as plain error. Our rejection of the same argument in State v. Vigil, 197 Or App 407, 106 P3d 656, adh'd to on recons, 199 Or App 525, 112 P3d 441, rev den, 339 Or 156 (2005), is controlling.
1. The trial court made that ruling in Case Number 035450FE. Defendant's DUII conviction in Case Number 031356MI is not at issue in this appeal.
Return to previous location.