After a trial to the court, defendant was convicted of two counts of contributing to the delinquency of a minor and two counts of burglary in the first degree. ORS 163.435; ORS 164.225. The trial court refused to apply the sentencing guidelines, because he believed that they violate the Oregon Constitution. He sentenced defendant to 10 years imprisonment with a mandatory minimum of 2 years.
The state concedes that the trial court erred in failing to apply the guidelines, see State v. Spinney, 109 Or App 573, 820 P2d 854 (1991); see also State v. Christman, 115 Or App 364, 838 P2d 1087 (1992), but argues that we should not reach the question, because defendant did not preserve it. Defendant did not timely object, but the error is apparent on the face of the record and we review it pursuant to ORS 138.222. ORAP 5.45(2); State v. Brown, 310 Or 347, 355, 800 P2d 259 (1990).
We accept the state’s concession that the sentencing was in error.
Convictions affirmed; remanded for resentencing.