State v. Smith , 205 Or. App. 557 ( 2006 )

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134 P.3d 1109 (2006) 205 Or. App. 557
STATE of Oregon, Respondent,
v.
David Allen SMITH, Appellant.
01FE0616AB; A119246.
Court of Appeals of Oregon.
Submitted on Record and Briefs November 3, 2005. Decided May 3, 2006.
Erin Galli Rohr and Chilton, Ebbett & Rohr filed the opening brief for appellant. Erin Galli Rohr filed the supplemental brief for appellant. David A. Smith filed the supplemental brief pro se.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Douglas F. Zier, Assistant Attorney General, filed the brief for respondent.

Before EDMONDS, Presiding Judge, and LINDER and WOLLHEIM, Judges.

PER CURIAM.

Defendant appeals a judgment convicting him of two counts of first-degree sexual abuse, ORS 163.427, and one count of coercion, ORS 163.275. On appeal, defendant assigns error to the trial court's exclusion of two witnesses' testimony. We reject those assignments of error without discussion. In addition, defendant asserts two unpreserved assignments of error related to his sentences. We remand for resentencing but otherwise affirm his convictions.

In his first unpreserved assignment, defendant argues that the trial court erred under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), in imposing consecutive sentences. He asks us to review his claim as plain error. We previously held that the imposition of consecutive sentences does not constitute error apparent on the face of the record. State v. Fuerte-Coria, 196 Or.App. 170, 100 P.3d 773 (2004), rev. den., 338 Or. 16, 107 P.3d 26 (2005). Therefore, we will not consider this assignment of error.

In the second unpreserved assignment, defendant challenges the imposition of a departure sentence. Because defendant's case was tried to a jury, it is controlled by State v. Ramirez, 205 Or.App. 113, 133 P.3d 343 (2006), and not State v. Gornick, 340 Or. 160, 130 P.3d 780 (2006). Accordingly, we vacate defendant's sentences and remand for resentencing.^[1]

Sentences vacated; remanded for resentencing; otherwise affirmed.

NOTES

[1] We note that, under ORS 138.222(5)(a), the entire case is remanded for resentencing.