State v. Belk

FILED: April 27, 2005

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

MARY ELLEN BELK,

Appellant.

03C46802; A123312

Appeal from Circuit Court, Marion County.

Susan M. Tripp, Judge.

Submitted on record and briefs March 30, 2005.

John L. Susac, Deputy Public Defender, filed the brief for appellant. With him on the brief were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Office of Public Defense Services.

Joanna L. Jenkins, Assistant Attorney General, filed the brief for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

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

PER CURIAM

Sentence vacated and remanded for resentencing; otherwise affirmed.

PER CURIAM

Defendant pleaded guilty to delivery of a controlled substance, ORS 475.992(1)(b). The trial court imposed a durational and dispositional departure sentence of 24 months imprisonment based on its findings that drug treatments had not deterred defendant's involvement with drugs and that defendant had not appeared for a previous sentencing hearing. Defendant did not admit either finding, nor did the state prove either to a jury beyond a reasonable doubt. The court also denied defendant eligibility under ORS 137.750 for various sentence modifications.

On appeal, defendant argues that both of the trial court's actions violate her rights under the Sixth Amendment as the Supreme Court established them in Blakely v. Washington, 542 US ___, 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). She did not preserve either of those arguments in the trial court. In State v. Perez, 196 Or App 364, 102 P3d 705 (2004), rev pending, (2005), we held that the use of unadmitted and unproven facts to increase a guidelines sentence is error apparent on the face of the record. In State v. Vigil, 197 Or App 407, 106 P3d 656 (2005), we held that the use of such facts as the basis for denying a defendant access to the sentence modifications described in ORS 137.750 is not error apparent on the face of the record. Those holdings apply to this case.

Sentence vacated and remanded for resentencing; otherwise affirmed.