State v. Williams

FILED: December 6, 2006

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

JOHN MICHAEL WILLIAMS,

Appellant.

CR030649; A124925

Appeal from Circuit Court, Yamhill County.

Alan C. Bonebrake, Senior Judge.

Submitted on record and briefs October 31, 2006.

Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, Legal Services Division, and Louis R. Miles, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Kathleen Cegla, Assistant Attorney General, filed the brief for respondent.

Before Haselton, Presiding Judge, and Brewer, Chief Judge, and Rosenblum, Judge.

PER CURIAM

Sentences vacated; remanded for resentencing; otherwise affirmed.

PER CURIAM

Defendant appeals his convictions after a trial to a jury on numerous sexual offenses following a jury trial, as well as his upward departure sentence on one count of third-degree rape, ORS 163.355. Defendant argues that the trial court erred in admitting certain evidence that was irrelevant and prejudicial and that the court erred in imposing a departure sentence based on facts not found by the jury or admitted by defendant. We reject without discussion defendant's argument pertaining to the admission of evidence. As to the imposition of a departure sentence, we agree with defendant that the sentence was erroneous and, therefore, remand for resentencing.

Defendant did not preserve his present argument that the imposition of the departure sentence violated 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 not based on facts admitted by defendant or found by the jury. However, we have held that the imposition of a departure sentence under similar circumstances constituted plain error. State v. Ramirez, 205 Or App 113, 133 P3d 343, adh'd to on recons, 207 Or App 1, 139 P3d 981 (2006). For the reasons set forth in Ramirez, we exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.