State v. Tatarinov

PER CURIAM Defendant was convicted in two consolidated cases of multiple counts of identity theft, ORS 165.800, and one count each of first-degree forgery, ORS 165.013, attempted first-degree theft, ORS 164.055, unauthorized use of a vehicle, ORS 164.135, and fraudulent use of a credit card, ORS 165.055. On appeal, he argues that the trial court erred in several regards in imposing sentence. On count one in case number A121007, the trial court imposed an 18-month durational departure sentence on the ground of “persistent involvement” in similar offenses. Defendant argues that, under 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), the court erred in imposing an upward departure sentence based on a fact not admitted by the defendant or found by a jury. Although defendant did not advance such a challenge to the trial court, he argues that the sentence should be reviewed as plain error. Under our decision in State v. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005), the sentence is plainly erroneous. For the reason set forth in Perez, we exercise our discretion to correct the error. In case number A121006, affirmed. In case number A121007, sentences vacated; remanded for resentencing; otherwise affirmed.