State v. Mozingo

This case is before us on remand from the Oregon Supreme Court, which vacated our prior decision, State v. Mozingo, 201 Or App 720, 120 P3d 539 (2005) (Mozingo I), in light of State v. Ramirez, 343 Or 505, 173 P3d 817 (2007), adh’d to as modified on recons, 344 Or 195, 179 P3d 673 (2008). State v. Mozingo, 345 Or 316, 195 P3d 63 (2008). In Mozingo I, we remanded for resentencing because the court had imposed an upward departure sentence on defendant’s conviction for first-degree sexual abuse, ORS 163.427, based on judicial factfinding. That factfinding constituted plain error, and we…