State v. Jessup

FILED: October 12, 2005

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

JANET G. JESSUP,

Appellant.

0301-30518; A123246

Appeal from Circuit Court, Multnomah County.

Ellen F. Rosenblum, Judge.

Submitted on record and briefs August 31, 2005.

Peter A. Ozanne, Executive Director, 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, Mary H. Williams, Solicitor General, and Douglas F. Zier, Assistant Attorney General, filed the brief for respondent.

Before Haselton, Presiding Judge, and Brewer, Chief Judge,* and Armstrong, Judge.

PER CURIAM

Sentences vacated; remanded for resentencing; otherwise affirmed.

*Brewer, C. J., vice Ceniceros, S. J.

PER CURIAM

Defendant was convicted of two counts of first-degree criminal mistreatment, ORS 163.205, and two counts of felony fourth-degree assault, ORS 163.160. The trial court imposed departure sentences on each of the convictions based on a variety of departure factors, including that defendant knew or had reason to know of the victim's particular vulnerability, OAR 213-008-0002(1)(b)(B). Defendant 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 departure sentences based on facts not found by a jury or admitted by defendant.

Although defendant did not advance such a challenge to the trial court, she argues that the sentences should be reviewed as plain error. Under our decision in State v. Ross, 196 Or App 420, 102 P3d 755 (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.