STATE v. CAUSOR MANDOZA (2006)

  The state petitions for reconsideration of our opinion, in which we concluded that the trial court committed plain error in imposing departure sentences based on facts that defendant did not admit and that were not found by a jury.  State v. Causor-Mandoza, 203 Or.App. 175, 124 P.3d 1254 (2005).   The state argues that, under the Supreme Court's recent decision in State v. Gornick, 340 Or. 160, 130 P.3d 780 (2006), the departure sentences were not plainly erroneous.   Allowing the state's petition, we agree.   Defendant was convicted after he waived his right to a jury and pleaded guilty.   He did not object when, at sentencing, the trial court found aggravating facts and imposed departure sentences.   Under Gornick, it is possible to infer from those circumstances that defendant chose to have the trial court act as the factfinder at sentencing;  imposition of the departure sentence was therefore not plainly erroneous.

 In our earlier opinion, we did not have occasion to reach defendant's other argument, also unpreserved, 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 ordering him to pay restitution based on facts that defendant did not admit and that were not found by a jury.   We now reach that argument and reject it.   Imposition of restitution based on facts not found by a jury or admitted by a defendant is not plain error.  State v. Gutierrez, 197 Or.App. 496, 505, 106 P.3d 670, adh'd to as modified on recons., 199 Or.App. 521, 112 P.3d 433 (2005), rev. den., 340 Or. 673, 136 P.3d 743 (2006).

Motion for relief from default granted;  reconsideration allowed;  former disposition withdrawn;  affirmed.

PER CURIAM.