STATE of Oregon, Plaintiff-Respondent, v. William Ross HILL, Defendant-Appellant.
Defendant appeals his conviction and sentence for sexual abuse in the first degree, ORS 163.427, raising several assignments of error. We write only to address defendant's contention that the trial court erred in imposing an upward departure sentence and reject defendant's other contentions without discussion. As explained below, we affirm defendant's conviction but remand for resentencing.
First-degree sexual abuse is subject to a mandatory minimum sentence of 75 months' imprisonment. ORS 137.700. In this case, the trial court imposed an upward departure sentence of 80 months after finding that defendant had persistently been involved in similar crimes, that the victim was particularly vulnerable, and that the offense resulted in permanent injury to the victim. Defendant asserts that an enhanced sentence based on such judicial factfinding violates the rule of law announced in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We agree. Defendant is entitled to resentencing because the court imposed an upward departure sentence based on facts not found by the jury or admitted by defendant.
Although defendant's challenge to his sentence is unpreserved, in 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), rev. allowed, 342 Or. 256, 151 P.3d 930 (2007), we held that the imposition of a departure sentence under similar circumstances constituted plain error. For the reasons set forth in Ramirez, we exercise our discretion to correct the error.
Sentence vacated; remanded for resentencing; otherwise affirmed.