State v. Sanders

FILED: October 12, 2005

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

GARY DELANO SANDERS, JR.,

Appellant.

9807-36177; A123098

Appeal from Circuit Court, Multnomah County.

Janice R. Wilson, Judge.

Submitted on record and briefs August 31, 2005.

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

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Stacey RJ Guise, Assistant Attorney General, filed the brief for respondent.

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

PER CURIAM

Sentences vacated; remanded for resentencing; otherwise affirmed.

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

PER CURIAM

Defendant was convicted of first-degree assault, ORS 163.185, three counts of second-degree assault, ORS 163.175, and four counts of fourth-degree assault, ORS 163.160. He received 30-year dangerous offender sentences on the conviction for first-degree assault and on one of the convictions for second-degree assault. 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 sentences that exceed the statutory indeterminate sentences that may be imposed for those crimes under ORS 161.605 based on facts not found by the jury.

Although defendant did not advance such a challenge to the trial court, he argues that the sentences should be reviewed as plain error. Under our decision in State v. Warren, 195 Or App 656, 98 P3d 1129 (2004), the sentences are plainly erroneous. For the reason set forth in State v. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005), we exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.