State v. Grittman

FILED: December 7, 2005

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

ROBERT WESLEY GRITTMAN,

Appellant.

03C44199; A122233

Appeal from Circuit Court, Marion County.

Richard D. Barber, Judge.

Submitted on record and briefs August 4, 2005.

Erin Galli Rohr and Chilton, Ebbett & Rohr filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Elizabeth A. Gordon, Senior Assistant Attorney General, filed the brief for respondent.

Before Edmonds, Presiding Judge, and Linder, Judge, and Breithaupt, Judge pro tempore.

PER CURIAM

Sentence vacated; remanded for resentencing; otherwise affirmed.

PER CURIAM

Defendant appeals from a conviction for manufacture of a controlled substance within 1,000 feet of a school. ORS 475.999. The trial court imposed an upward departure sentence based on findings that defendant was on supervision when he committed the offenses and that defendant had a pattern of persistent involvement in similar offenses. 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. Under our decision in State v. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005), the trial court's upward departure 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.