STATE v. HOWELL (2006)

 After a trial to a jury, defendant was convicted of two counts of first-degree arson, ORS 164.325, and one count of first-degree criminal mischief, ORS 164.365.   The trial court imposed an upward durational departure sentence on one of the arson convictions, based on its findings that the crime involved a “threat of actual violence” and that defendant had a history of “persistent involvement in similar offenses.”   The court also imposed a dispositional departure on the criminal mischief conviction.

On appeal, defendant first challenges his conviction, arguing that the trial court erred by denying a motion to suppress certain statements that he made to a police officer.   We reject that challenge without discussion.   Defendant also challenges his durational departure sentence on the arson conviction, arguing that the trial court's imposition of that sentence violated the principles articulated 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), because the departure was based on facts that were not admitted by defendant or found by a jury.   Defendant concedes that he did not advance that challenge below, but he argues that the sentence should be reviewed as plain error.   Under our decision in State v. Ramirez, 205 Or.App. 113, 133 P.3d 343 (2006), the sentence is plainly erroneous.   For the reasons set forth in Ramirez, 205 Or.App. at 125, 133 P.3d 343, we exercise our discretion to correct the error.

Sentences vacated;  remanded for resentencing;  otherwise affirmed.

PER CURIAM.