State v. Captain

PER CURIAM Defendant was convicted of attempted aggravated murder, ORS 163.095, first-degree rape, ORS 163.375, and second-degree assault, ORS 163.185. The trial court imposed a 30-year dangerous offender sentence on the attempted aggravated murder conviction and concurrent mandatory minimum sentences pursuant to ORS 137.700 on the rape and assault convictions. 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 a sentence on the attempted aggravated murder conviction that exceeds the statutory indeterminate sentences that may be imposed for that crime under ORS 161.605 based on facts not found by a jury or admitted by the defendant. 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. Warren, 195 Or App 656, 98 P3d 1129 (2004), the sentence is plainly erroneous. For the reason set forth in State v. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005), we exercise our discretion to correct the error. Sentences vacated; remanded for resentencing; otherwise affirmed.