State v. Thomas , 204 Or. App. 109 ( 2006 )

129 P.3d 212 (2006) 204 Or. App. 109

STATE of Oregon, Respondent,
v.
Antonio Lamar THOMAS, Appellant.

010634545, A118915.

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.

Antonio Lamar Thomas filed the supplemental brief pro se.

Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General, and Janet A. Klapstein, Assistant Attorney General, filed the brief for respondent.

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

PER CURIAM.

Defendant was convicted of attempted murder with a firearm, first-degree assault with a firearm, and felon in possession of a firearm. He challenges his convictions and sentences. We reject defendant's challenges to his convictions without discussion.

With respect to his sentences, defendant argues that the trial court's imposition of dangerous offender sentences 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 sentences were 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 imposition of the sentences should be reviewed as plain error. Under our decision in State v. Warren, 195 Or.App. 656, 98 P.3d 1129 (2004), the sentences are plainly erroneous. For the reason set forth in State v. Perez, 196 Or.App. 364, 102 P.3d 705 (2004), rev. allowed, 338 Or. 488, 113 P.3d 434 (2005), we exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.

NOTES

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