State v. Lennon , 204 Or. App. 111 ( 2006 )

129 P.3d 209 (2006) 204 Or. App. 111

STATE of Oregon, Respondent,
v.
Charles Kavin LENNON, aka Charles Cavin Lennon, Appellant.

02C-46833; A122082.

Court of Appeals of Oregon.

Submitted on Record and Briefs December 29, 2005. Decided February 1, 2006.

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

Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General, and Stacey RJ Guise, Assistant Attorney General, filed the brief for respondent.

Before EDMONDS, Presiding Judge, and LINDER and WOLLHEIM,^[*] Judges.

PER CURIAM.

Defendant was convicted of delivery of a controlled substance and received an upward departure sentence of 80 months' imprisonment and 36 months' post-prison supervision. He challenges both his conviction and sentence. We reject without discussion defendant's arguments regarding his conviction.

With respect to his sentence, defendant argues that the trial court's imposition of an upward departure sentence based on its finding that "prior incarcerations, probations, paroles, sanctions haven't worked" was erroneous 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), because the sentence was based on facts that were not admitted by defendant nor found by a jury. Although defendant did not advance such a challenge below, he argues that the imposition of the sentence should be reviewed as plain error. Under our decision in State v. Perez, 196 Or.App. 364, 102 P.3d 705 (2004), rev. allowed, 338 Or. 488, 113 P.3d 434 (2005), the sentence is plainly erroneous. For the reason discussed in Perez, we exercise our discretion to correct the error.

Sentence vacated; remanded for resentencing; otherwise affirmed.

NOTES

[*] Wollheim, J., vice Richardson, S.J.