State v. Williams

FILED: September 6, 2006

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

LOVELL WILLIAMS JR.,

Appellant.

00C-55187; A124459

Appeal from Circuit Court, Marion County.

Dennis J. Graves, Judge.

Submitted on record and briefs July 27, 2006.

James N. Varner filed the opening brief for appellant. Lovell Williams Jr. filed the supplemental brief pro se.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Christina M. Hutchins, Assistant Attorney General, filed the brief for respondent.

Before Edmonds, Presiding Judge, and Linder, Judge, and Deits, Judge pro tempore.

PER CURIAM

Sentence vacated; remanded for resentencing; otherwise affirmed.

PER CURIAM

After a trial to a jury, defendant was convicted of first-degree robbery. The court imposed an upward departure sentence of 120 months' imprisonment based on its findings that defendant was persistently involved in similar offenses and that prior sanctions had not been effective.

On appeal, defendant challenges his conviction and sentence. We reject defendant's challenges to his conviction without discussion. With respect to his sentence, defendant argues that the departure sentence violated the principles enunciated in 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 it was based on facts that were not admitted by defendant or found by a jury. Although defendant did not advance such a challenge below, he argues that the sentence should be reviewed as plain error. Under our decision in State v. Ramirez, 205 Or App 113, 133 P3d 343, adh'd to on recons, 207 Or App 1, 139 P3d 981 (2006), the sentence is plainly erroneous. For the reason set forth in Ramirez, we exercise our discretion to correct the error.

Sentence vacated; remanded for resentencing; otherwise affirmed.