FILED: December 28, 2005

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

GABRIEL FARIAS-ESTRADA,

Appellant.

04CR0228; A125264

Appeal from Circuit Court, Josephine County.

Lindi L. Baker, Judge.

Submitted on record and briefs November 30, 2005.

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

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

Before Landau, Presiding Judge, and Schuman and Ortega, Judges.

LANDAU, P. J.

Sentence vacated; remanded for resentencing; otherwise affirmed.

LANDAU, P. J.

Defendant was convicted of delivery of a controlled substance, ORS 475.992(1)(a). The trial court imposed an upward durational departure sentence, based on findings of "Harm or Loss Significantly Greater than Typical" and "Organized Crime Operation." The trial court found that either of the factors was sufficient to support departure. On appeal, defendant challenges only the sentence, 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 a departure sentence based on facts that defendant did not admit and that were not found by a jury. He concedes that he did not advance such a challenge to the trial court, but argues that the sentence should be reviewed as plain error.

With respect to the aggravating factor "Harm or Loss Significantly Greater than Typical," the state argues that defendant's counsel remarked during the sentencing hearing that the factor was "legitimate" and that in so doing defendant was "essentially admitting the existence of the facts necessary to that determination." Defendant's counsel's remark that the factor was "legitimate" does not amount to an admission of the underlying facts for purposes of Blakely. Under 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), the court's imposition of a departure sentence based on that factor was plainly erroneous. With respect to the court's finding of "organized crime operation," the state concedes that, under Gornick and Perez, the sentence is plainly erroneous. We accept the state's concession and, for the reasons discussed in those cases, exercise our discretion to correct the error.

Sentence vacated; remanded for resentencing; otherwise affirmed. 


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