State v. Vandeneynde

FILED: December 14, 2005

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

KELLIE ANN VANDENEYNDE,

Appellant.

03C42759; A124231

Appeal from Circuit Court, Marion County.

Mary M. James, Judge.

Submitted on record and brief November 22, 2005.

David J. Celuch filed the brief for appellant.

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

Before Landau, Presiding Judge, and Schuman, Judge, and Deits, Judge pro tempore.

PER CURIAM

Sentences vacated; remanded for resentencing; otherwise affirmed.

PER CURIAM

Defendant was convicted of one count of delivery of a controlled substance and one count of possession of a controlled substance, schedule II. The trial court imposed a dispositional departure sentence on the convictions, based on a finding concerning defendant's "criminal history." On appeal, defendant challenges only the sentences, 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 departure sentences based on facts that defendant did not admit and that the court did not submit to a jury. She concedes that she did not advance such a challenge to the trial court, but argues that the sentences should be reviewed as plain error. The state concedes that, under our decision State v. Ross, 196 Or App 420, 102 P3d 755 (2004), the sentences are plainly erroneous. We accept the state's concession and, for the reasons discussed in Ross, exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.