State v. Dilts

Defendant pleaded guilty to assault in the third degree, ORS 163.165. The trial court found that the assault was motivated in part by the victim’s color and imposed an upward durational departure sentence of 36 months’ imprisonment. Defendant appeals from that sentence, asserting that evidence in the record does not support the trial court’s finding supporting the departure. ORS 138.222(3)(a). Defendant also asserts that imposition of the departure sentence based on a fact not pleaded in the accusatory instrument or proved beyond a reasonable doubt or admitted by him violated his rights under…