205 Or. App. 667 135 P.3d 357

Submitted on record and briefs March 24,

sentence vacated; remanded for resentencing; otherwise affirmed May 10, 2006

STATE OF OREGON, Respondent, v. DONALD W. KNOKE, Appellant.

0102729CR; A121494

135 P3d 357

Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, and Rebecca Duncan, Chief Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Janet A. Klapstein, Assistant Attorney General, filed the brief for respondent.

Before Edmonds, Presiding Judge, and Wollheim, Judge, and Deits, Judge pro tempore.

PER CURIAM

*668PER CURIAM

After a trial to a jury, defendant was convicted of second-degree assault. He received an upward departure sentence based on the trial court’s findings of “Permanent injury to victim; Harm and loss significantly greater than typical; Repetitive assaults unrelated to current crime; Lack of remorse; Assaults escalating in seriousness.” On appeal, defendant makes various challenges to his conviction; we reject those challenges without discussion.

Defendant also challenges his sentence. Defendant argues that the trial court’s imposition of a departure sentence violated the principles enunciated in Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004), and Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000), because the sentence was based on facts that were not admitted by defendant or found by a jury. Defendant did not advance that challenge below, but argues that the sentence should be reviewed as plain error. Under our decision in State v. Ramirez, 205 Or App 113, 133 P3d 343 (2006), the sentence is plainly erroneous. For the reason set forth in Ramirez, we exercise our discretion to correct the error.1

Sentence vacated; remanded for resentencing; otherwise affirmed.

State v. Knoke
205 Or. App. 667 135 P.3d 357

Case Details

Name
State v. Knoke
Decision Date
May 10, 2006
Citations

205 Or. App. 667

135 P.3d 357

Jurisdiction
Oregon

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