STATE v. BAUTISTA MARTINEZ (2006)

 Defendant was convicted after a jury trial on one count of delivery of a controlled substance, former ORS 475.992(1)(b),¹ and one count of possession of a controlled substance, former ORS 475.992(4)(b).²  On appeal, defendant raises numerous challenges to his convictions and sentences.   We reject without discussion defendant's challenges to his convictions.   The sentencing court imposed an upward durational departure sentence on the delivery of a controlled substance conviction based on a finding that prior sanctions and probation had not deterred defendant's criminal behavior.   Defendant argues 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 that sentence based on facts that were not found by a jury or admitted by defendant, in violation of his rights under the Sixth Amendment to the United States Constitution.

Although defendant did not advance such a challenge to the trial court, he argues that the sentence should be reviewed as plain error. We agree.   See State v. Ramirez, 205 Or.App. 113, 133 P.3d 343, adh'd to on recons., 207 Or.App. 1, 139 P.3d 981 (2006).   For the reason set forth in Ramirez, we exercise our discretion to correct the error.   Because that error requires resentencing, we do not reach defendant's remaining arguments concerning his sentences.

Sentences vacated;  remanded for resentencing;  otherwise affirmed.

FOOTNOTES

1.   ORS 475.992(1)(b) was renumbered ORS 475.840(1)(b) in 2005.

2.   ORS 475.992(4)(b) was renumbered ORS 475.840(3)(b) in 2005.

PER CURIAM.