FILED: October 12, 2005

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

BRANDON FORREST SACKETT,

Appellant.

20-04-06823; A125328

Appeal from Circuit Court, Lane County.

Lyle C. Velure, Judge.

Submitted on record and briefs August 31, 2005.

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

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

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

PER CURIAM

Sentence vacated; remanded for resentencing; otherwise affirmed.

*Rosenblum, J., vice Ceniceros, S. J.

PER CURIAM

Defendant appeals his sentence of 26 months of imprisonment imposed on his conviction for unauthorized use of a vehicle. ORS 164.135. He 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 an upward departure sentence based on a finding that defendant had "pending other crimes charged in this court," which was not admitted by the defendant or found by a jury.

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 decisions in State v. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005), and State v. Etter, 200 Or App 52, 112 P3d 472 (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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