STATE of Oregon, Respondent,
v.
Clovis Dean POWELL, Appellant.
No. 20-03-01146; A121819.
Court of Appeals of Oregon.
Submitted on Record and Briefs August 31, 2005. Decided October 12, 2005.Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, and Rebecca Duncan, Chief Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Janet A. Klapstein, Assistant Attorney General, filed the brief for respondent.
Before HASELTON, Presiding Judge, and ARMSTRONG and ROSENBLUM,[*] Judges.
PER CURIAM.
Defendant was convicted of attempting to elude a police officer, ORS 811.540, reckless driving, ORS 811.140, two counts of third-degree assault, ORS 163.165, second-degree criminal mischief, ORS 163.364, possession of a controlled substance, ORS 475.992, and resisting arrest, ORS 162.315. The trial court imposed departure sentences for a number of the offenses, based on a finding of persistent involvement in similar offenses. Defendant argues that, 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), the court erred in imposing departure sentences based on a fact that was not admitted by the defendant or found by a jury.
Although defendant did not advance such a challenge to the trial court, he argues that the sentences should be reviewed as plain error. Under our decisions in State v. Perez, 196 Or.App. 364, 102 P.3d 705 (2004), rev. allowed, 338 Or. 488, 113 P.3d 434 (2005), the sentences are plainly erroneous. For the reason set forth in Perez, we exercise our discretion to correct the error.
Sentences vacated; remanded for resentencing; otherwise affirmed.
NOTES
[*] Rosenblum, J., vice Ceniceros, S.J.