State v. Johnson

FILED: July 5, 2006

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

LINSON LAVELL JOHNSON,

Appellant.

0002-0556; A113627

Appeal from Circuit Court, Linn County. Rick J. McCormick, Judge. Submitted on record and briefs May 25, 2006. Scott L. Eisenstein, Fred C. Nachtigal, and Nachtigal, Eisenstein & Associates filed the opening brief for appellant. James N. Varner filed the supplemental briefs for appellant. Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Kaye E. McDonald, Assistant Attorney General, filed the briefs for respondent. Before Wollheim, Presiding Judge, and Edmonds* and Armstrong, Judges. PER CURIAM Affirmed. * Edmonds, J., vice Ceniceros, S. J. PER CURIAM Defendant waived his right to a jury trial and, after a trial to the court, was convicted of two counts of criminal mistreatment in the first degree, one count of criminal mistreatment in the second degree, two counts of assault in the fourth degree, four counts of tampering with a witness, and three counts of coercion. The trial court imposed upward departure sentences with respect to three of the counts. On appeal, defendant challenges his convictions and sentences. We reject defendant's challenges to his convictions without discussion. With respect to his sentences, defendant argues that the departure sentences violated 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), because they were based on facts that were not admitted by defendant or found by a jury. Defendant did not raise that issue to the trial court, but argues that the sentences should be reviewed for plain error. In light of State v. Gornick, 340 Or 160, 130 P3d 780 (2006), and State v. Perez, 340 Or 310, 131 P3d 168 (2006), imposition of the departure sentences was not plainly erroneous. Affirmed.