State v. Woods , 224 Or. App. 684 ( 2008 )

198 P.3d 978 (2008) 224 Or. App. 684

STATE of Oregon, Plaintiff-Respondent,
v.
Larry Leroy WOODS, aka Larry L. Woods, aka Robert Leroy Green, Defendant-Appellant.

051237684; A132383.

Court of Appeals of Oregon.

Submitted October 21, 2008. Decided December 24, 2008.

James N. Varner, Dundee, filed the brief for appellant. Larry L. Woods filed the supplemental brief pro se.

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

Before ARMSTRONG, Presiding Judge, and ROSENBLUM, Judge, and SERCOMBE, Judge.

PER CURIAM.

Defendant was convicted after a jury trial on one count each of robbery in the third degree, ORS 164.395, theft in the second degree, ORS 164.045, assault in the fourth degree, ORS 163.160, and resisting arrest, ORS 162.315. The trial court imposed an upward departure sentence for the robbery count, based on its conclusion that certain findings by the jury constituted substantial and compelling reasons justifying that departure. The trial court also imposed, over defendant's objections, consecutive sentences for the assault and the resisting arrest counts based on judicial factfinding. On appeal, defendant argues that the trial court erred in imposing the upward departure sentence and in imposing the consecutive sentences. Defendant also raises a pro se claim that his federal due process rights were violated when a pretrial "call" hearing setting his trial date was conducted in his absence.

We reject without discussion defendant's challenges to the upward departure sentence and to the pretrial hearing. As to defendant's challenge to the consecutive sentences, the state acknowledges that the Oregon Supreme Court's decision in State v. Ice, 343 Or. 248, 260, 170 P.3d 1049 (2007), cert. granted, ___ U.S. ___, 128 S.Ct. 1657, 170 L.Ed.2d 353 (2008) controls, and, as such, the trial court erred in imposing the consecutive sentences. We agree.

Remanded for resentencing; otherwise affirmed.