State v. Dehut

• Decision Date: 15 March 2006
• Docket Number: 03C-44670; A124718.
• Citation: 204 Or. App. 683,131 P.3d 820
• Parties: STATE of Oregon, Respondent, v. Kenneth Lee DEHUT, Appellant.
• Court: Oregon Court of Appeals

Page 820

131 P.3d 820

204 Or. App. 683

STATE of Oregon, Respondent, v. Kenneth Lee DEHUT, Appellant.

03C-44670; A124718.

Court of Appeals of Oregon.

Submitted on Record and Briefs January 31, 2006.

Decided March 15, 2006.

Appeal from Circuit Court, Marion County; Claudia M. Burton, Judge.

Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, Legal Services Division, and David C. Degner, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Doug M. Petrina, Assistant Attorney General, filed the brief for respondent.

Before HASELTON, Presiding Judge, and ARMSTRONG and ROSENBLUM, Judges.

PER CURIAM.

Defendant was convicted after a jury trial of being an inmate in possession of a weapon. ORS 166.275. The trial court imposed a departure sentence of 60 months' imprisonment based on findings that defendant had persistently been involved in similar offenses and that prior sanctions had not deterred defendant's criminal conduct. On appeal, defendant argues 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 imposing that sentence based on facts that were not found by a jury or admitted by defendant, in violation of his rights under the Sixth Amendment to the United States Constitution.

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 P.3d 705 (2004), rev. allowed, 338 Or. 488, 113 P.3d 434 (2005), the sentence is plainly erroneous. For the reason set forth...