STATE v. BELK (2005)

Defendant pleaded guilty to delivery of a controlled substance, ORS 475.992(1)(b).  The trial court imposed a durational and dispositional departure sentence of 24 months imprisonment based on its findings that drug treatments had not deterred defendant's involvement with drugs and that defendant had not appeared for a previous sentencing hearing.   Defendant did not admit either finding, nor did the state prove either to a jury beyond a reasonable doubt.   The court also denied defendant eligibility under ORS 137.750 for various sentence modifications.

 On appeal, defendant argues that both of the trial court's actions violate her rights under the Sixth Amendment as the Supreme Court established them in 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).   She did not preserve either of those arguments in the trial court.   In State v. Perez, 196 Or.App. 364, 102 P.3d 705 (2004), rev. pending (2005), we held that the use of unadmitted and unproven facts to increase a guidelines sentence is error apparent on the face of the record.   In State v. Vigil, 197 Or.App. 407, 106 P.3d 656 (2005), we held that the use of such facts as the basis for denying a defendant access to the sentence modifications described in ORS 137.750 is not error apparent on the face of the record.   Those holdings apply to this case.

Sentence vacated and remanded for resentencing;  otherwise affirmed.

 PER CURIAM.