State v. Byrd

FILED: December 13, 2006

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

ROY WAYNE BYRD,

Appellant.

03CR0366FE; A121962

Appeal from Circuit Court, Douglas County.

Robert C. Millikan, Judge.

Submitted on record and briefs November 6, 2006.

James N. Varner 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 Edmonds, Presiding Judge, and Linder and Wollheim, Judges.

PER CURIAM

Sentences vacated; remanded for resentencing; otherwise affirmed.

PER CURIAM

After a trial to a jury, defendant was convicted of felon in possession of a firearm, ORS 166.270, resisting arrest, ORS 162.315, and unauthorized use of a vehicle, ORS 164.135. On the conviction for felon in possession of a firearm, the court imposed an upward departure sentence of 36 months' imprisonment based on its finding that defendant had been persistently involved in similar offenses. The court imposed a dispositional departure sentence of 13 months' imprisonment on the conviction for unauthorized use of a vehicle, based on a similar finding.

On appeal, defendant argues that the departure sentences violated his rights under the Sixth Amendment to the United States Constitution based on the principles articulated in 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), because the sentences were based on facts that were not admitted by defendant or found by a jury. Although defendant did not advance such a challenge below, he argues that the sentences should be reviewed as plain error. Under our decision in State v. Ramirez, 205 Or App 113, 133 P3d 343, adh'd to on recons, 207 Or App 1, 139 P3d 981 (2006), the sentences are plainly erroneous. For the reason set forth in Ramirez, we exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.