Defendant waived his right to a jury trial and was convicted in a trial to the court of robbery in the third degree, ORS 164.395, assault in the fourth degree, ORS 163.160, and theft in the third degree, ORS 164.043. On appeal, defendant challenges only the sentence for robbery in the third degree, arguing that, under Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004), and Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000), the trial court erred in imposing an upward departure sentence. He concedes that he did not advance such a challenge to the trial court, but argues that the sentence should be reviewed as plain error. Under similar circumstances, the same argument was rejected in State v. Gornick, 340 Or 160, 170, 130 P3d 780 (2006), which is controlling.
Affirmed.