State v. Lamarsh

FILED: April 22, 2009

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

JOHN LESTER LAMARSH,

Defendant-Appellant.

Clackamas County Circuit Court
CR0600226
A134428

Thomas J. Rastetter, Judge.

Submitted on March 26, 2009.

Peter Gartlan, Chief Defender, and Mary Shannon Storey, Deputy Public Defender, Legal Services Division, Office of Public Defense Services, filed the brief for appellant.

John R. Kroger, Attorney General, Rolf C. Moan, Acting Solicitor General, and Doug M. Petrina, Senior Assistant Attorney General, filed the brief for respondent.

Before Edmonds, Presiding Judge, and Brewer, Chief Judge, and Sercombe, Judge.

PER CURIAM

Remanded for resentencing; otherwise affirmed.

PER CURIAM

Defendant was convicted of eight counts of first-degree sexual abuse, ORS 163.427.  The trial court sentenced defendant to consecutive 75-month sentences under ORS 137.700 (Measure 11).  On appeal, defendant contends that the trial court erred in imposing Measure 11 sentences based on its own factual finding that his offenses occurred after the effective date of Measure 11.  The state concedes that the trial court erred in that regard and that the case must be remanded for resentencing.  Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004); Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000).  We agree and accept the state's concession.

Remanded for resentencing; otherwise affirmed.