State v. Gortler

FILED: May 3, 2006

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

WILLIAM DEAN GORTLER,

Appellant.

200225083; A121534

Appeal from Circuit Court, Lane County.

Maurice Merten, Judge.

Argued and submitted March 24, 2006.

David Ferry, Deputy Public Defender, argued the cause for appellant. With him on the brief were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Office of Public Defense Services.

Christina M. Hutchins, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before Edmonds, Presiding Judge, and Wollheim, Judge, and Deits, Judge pro tempore.

PER CURIAM

Affirmed.

PER CURIAM

After a jury trial, defendant was convicted of two counts of unauthorized use of a vehicle (UUV), one count each of manufacturing and delivery of a controlled substance, and two counts of possession of a controlled substance. (1) At the sentencing hearing, defendant pleaded guilty to a new UUV charge and stipulated to a 13-month sentence concurrent to the sentences imposed following the jury trial on the other counts. On appeal, he argues that the trial court erred when it imposed consecutive sentences and restitution. Defendant concedes that those arguments are controlled by State v. Fuerte-Coria, 196 Or App 170, 174, 100 P3d 773 (2004), rev den, 338 Or 16 (2005), and State v. Gutierrez, 197 Or App 496, 505, 106 P3d 670 (2005), respectively. Defendant also argues that the trial court erred in imposing a departure sentence on the first UUV count, but, because he does not challenge the longer, concurrent sentence for the third UUV count, any error is harmless. See, e.g., State v. Tremillion, 111 Or App 375, 376, 826 P2d 95, rev den, 313 Or 300 (1992).

Defendant also makes unpreserved challenges to the trial court's imposition of upward departure sentences on his other convictions 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). Under the totality of the circumstances presented here, including defendant's plea of guilty to two of the charges, State v. Perez, 340 Or 310, ___ P3d ___ (2006), is controlling, and we therefore reject defendant's challenges.

Affirmed.

1. Defendant was also charged originally with attempting to elude a police officer. He pleaded guilty to that charge and stipulated to a consecutive six-month sentence. He does not challenge that sentence on appeal.