State v. Gortler , 205 Or. App. 545 ( 2006 )

134 P.3d 1108 (2006) 205 Or. App. 545

STATE of Oregon, Respondent,
v.
William Dean GORTLER, Appellant.

200225083; A121534.

Court of Appeals of Oregon.

Argued and Submitted March 24, 2006. Decided May 3, 2006.

David Ferry, Deputy Public Defender, argued the cause for appellant. With him on the brief were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Office of Public Defense Services.

Christina M. Hutchins, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before EDMONDS, Presiding Judge, and WOLLHEIM, Judge, and DEITS, Judge pro tempore.

PER CURIAM.

After a jury trial, defendant was convicted of two counts of unauthorized use of a vehicle (UUV), one count each of manufacturing and delivery of a controlled substance, and two counts of possession of a controlled substance.^[1] At the sentencing hearing, defendant pleaded guilty to a new UUV charge and stipulated to a 13-month sentence concurrent to the sentences imposed following the jury trial on the other counts. On appeal, he argues that the trial court erred when it imposed consecutive sentences and restitution. Defendant concedes that those arguments are controlled by State v. Fuerte-Coria, 196 Or.App. 170, 174, 100 P.3d 773 (2004), rev. den., 338 Or. 16, 107 P.3d 26 (2005), and State v. Gutierrez, 197 Or.App. 496, 505, 106 P.3d 670 (2005), respectively. Defendant also argues that the trial court erred in imposing a departure sentence on the first UUV count, but, because he does not challenge the longer, concurrent sentence for the third UUV count, any error is harmless. See, e.g., State v. Tremillion, 111 Or. App. 375, 376, 826 P.2d 95, rev. den., 313 Or. 300, 832 P.2d 456 (1992).

Defendant also makes unpreserved challenges to the trial court's imposition of upward departure sentences on his other convictions under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Under the totality of the circumstances presented here, including defendant's plea of guilty to two of the charges, State v. Perez, 340 Or. 310, 131 P.3d 168 (2006), is controlling, and we therefore reject defendant's challenges.

Affirmed.

NOTES

[1] Defendant was also charged originally with attempting to elude a police officer. He pleaded guilty to that charge and stipulated to a consecutive six-month sentence. He does not challenge that sentence on appeal.