State v. Wick , 229 Or. App. 86 ( 2009 )

209 P.3d 857 (2009) 229 Or. App. 86

STATE of Oregon, Plaintiff-Appellant, Cross-Respondent,
v.
David Charlie WICK, Jr., Defendant-Respondent, Cross-Appellant.

040532848; A129555.

Court of Appeals of Oregon.

On Appellant's Petition for Reconsideration March 19, 2009. Decided June 10, 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 EDMONDS, Presiding Judge, and WOLLHEIM, Judge, and SERCOMBE, Judge.

PER CURIAM.

The state petitions this court to reconsider its decision in State v. Wick, 216 Or. App. 404, 173 P.3d 1231 (2007), rev. den., 344 Or. 671, 189 P.3d 26 (2008). In Wick, we remanded for resentencing on the state's appeal but affirmed defendant's convictions on cross-appeal. On the state's appeal, we concluded that the sentencing court correctly declined to impose consecutive sentences based on its own judicial factfinding, but we remanded so that the court could afford defendant the option of a jury trial on consecutive sentencing factors under Oregon Laws 2005, chapter 463. The state now contends that, in light of Oregon v. Ice, 555 U.S. ___, 129 S. Ct. 711, 172 L. Ed. 2d 517 (2009), we erred in concluding that the imposition of consecutive sentences under ORS 137.123(5) requires findings by a jury rather than a judge. We agree and, accordingly, modify our opinion in that respect.

Reconsideration allowed; former opinion modified and adhered to as modified.