State v. Fanning

FILED: June 28, 2006

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

KEVIN RAYE FANNING,

Appellant.

_________________________________

STATE OF OREGON,

Respondent,

v.

KEVIN RAYE FANNING,

Appellant.

04CR0143, 04CR0359;
A124507 (Control), A124508
(Cases Consolidated)

Appeal from Circuit Court, Coos County.

Michael Gillespie, Judge.

Submitted on record and briefs May 30, 2006.

Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, and Bronson D. James, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

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

Before Landau, Presiding Judge, and Schuman and Ortega,* Judges.

PER CURIAM

Sentences vacated; remanded for resentencing; otherwise affirmed.

*Ortega, J., vice Richardson, S. J.

PER CURIAM

After a trial to a jury, defendant was convicted of, among other offenses, one count of second-degree burglary, ORS 164.215. The court imposed an upward dispositional and durational departure sentence of 12 months' imprisonment and 12 months' post-prison supervision on the burglary conviction, based on its findings that defendant was on probation at the time of the offense and that defendant had "completely avoided efforts to rehabilitate himself." On appeal, defendant argues that the departure sentence violates the principles articulated 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 (2006), the sentence is plainly erroneous. For the reasons set forth in Ramirez, we exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.