State v. Vanronk

FILED: September 27, 2006

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

JOSEPH EDWARD VANRONK,

Appellant.

CR030172, CR030749, MI030576, MI030589;
A124404 (Control), A124405, A124406, A124407
(Cases Consolidated)

Appeal from Circuit Court, Yamhill County.

John L. Collins, Judge.

Argued and submitted August 18, 2006.

Bronson D. James, Deputy Public Defender, argued the cause for appellant. On the brief were Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, Legal Services Division, and Jennelle Meeks Barton, Deputy Public Defender, Office of Public Defense Services.

Anna M. Joyce, 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 Schuman, Presiding Judge, and Ortega and Rosenblum, Judges.

PER CURIAM

Case numbers A124404 and A124405, sentences vacated; remanded for resentencing; otherwise affirmed. Case numbers A124406 and A124407, affirmed.

PER CURIAM

Defendant was charged with various offenses in four indictments, and the cases were consolidated for trial. A jury returned verdicts against defendant, and judgment was entered, for unauthorized use of a motor vehicle, ORS 164.135, possession of a controlled substance, ORS 475.992, and failure to appear, ORS 162.205. Defendant was also found guilty by the court of driving while suspended, ORS 811.182. On appeal, he raises several assignments of error relating to the sufficiency of the state's evidence and the propriety of the prosecutor's closing arguments. We reject those assignments of error without discussion.

Defendant also assigns error to the imposition of departure sentences based on facts not found by a jury in case number A124404 and case number A124405. In both cases, defendant did not waive his jury trial right on any count as to which he was entitled to a jury, and the facts on which the court based the departure sentences were neither admitted by him nor found by a jury. Although defendant did not preserve those claims of error, the errors are plain on the face of the record, and we exercise our discretion to review them. State v. Ramirez , 205 Or App 113, 133 P3d 343, adh'd to on recons , 207 Or App 1, 139 P3d 981 (2006).

Case numbers A124404 and A124405, sentences vacated; remanded for resentencing; otherwise affirmed. Case numbers A124406 and A124407, affirmed.