State v. Ramirez , 228 Or. App. 740 ( 2009 )

209 P.3d 379 (2009) 228 Or. App. 740

STATE of Oregon, Plaintiff-Respondent,
v.
Anastacio RAMIREZ, Defendant-Appellant.

C030767CR; A123657.

Court of Appeals of Oregon.

On Respondent's Petition for Reconsideration March 19, 2009. Decided May 27, 2009.

John R. Kroger, Attorney General, Erika L. Hadlock, Acting Solicitor General, and Paul L. Smith, Assistant Attorney-in-Charge, Criminal Appeals, for petition.

Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and ORTEGA, Judge.

Prior report: 220 Or.App. 470, 188 P.3d 305.

PER CURIAM.

The state petitions for reconsideration of our decision in this case. In that decision, we concluded that, based on the Oregon Supreme Court's decision in State v. Ice, 343 Or. 248, 170 P.3d 1049 (2007), rev'd and rem'd, ___ U.S. ___, 129 S. Ct. 711, 172 L. Ed. 2d 517 (2009), the trial court's imposition of consecutive sentences based on its own findings of fact was plain error. The state now argues that, in light of the United States Supreme Court's reversal of the Oregon court's decision, we should reconsider. We agree. Under the United States Supreme Court's decision, the imposition of consecutive sentences was not error.

There remains an issue that we did not reach in our earlier decision, namely, whether the trial court committed plain error in denying defendant consideration for sentence modification programs under ORS 137.750. Defendant's contention that the trial court committed plain error is foreclosed by our decision in State v. Vigil, 197 Or.App. 407, 106 P.3d 656, adh'd to as modified on recons., 199 Or.App. 525, 112 P.3d 441, rev. den., 339 Or. 156, 119 P.3d 224 (2005).

Reconsideration allowed; former opinion and disposition withdrawn; affirmed.