State v. Jackson

117 P.3d 315 (2005) 201 Or. App. 208

STATE of Oregon, Respondent,
v.
Jerome Pinkney JACKSON, Appellant.

0303-31245; A122955.

Court of Appeals of Oregon.

Submitted on Record and Briefs July 5, 2005. Decided August 10, 2005.

Andrew S. Chilton and Chilton, Ebbett & Rohr, LLC, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Erika L. Hadlock, Assistant Solicitor General, filed the brief for respondent.

Before LANDAU, Presiding Judge, and SCHUMAN and ORTEGA, Judges.

PER CURIAM.

Defendant was convicted of one count of robbery in the second degree. ORS 164.405. The trial court imposed an upward durational departure sentence, based on a finding of persistent involvement in similar offenses. On appeal, defendant challenges only the sentence, arguing 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 a departure sentence based on facts that defendant did not admit and that the court did not submit to a jury. 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. The state concedes that, under our decisions in State v. Gornick, 196 Or.App. 397, 102 P.3d 734 (2004), rev. allowed, 338 Or. 583, 114 P.3d 504 (2005), and 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. We accept the state's concession and, for the reasons discussed in those cases, exercise our discretion to correct the error.

Sentence vacated; remanded for resentencing; otherwise affirmed.