State v. Wick

FILED: June 10, 2009

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Appellant,
Cross-Respondent,

v.

DAVID CHARLIE WICK, JR.,

Defendant-Respondent,
Cross-Appellant.

Multnomah County Circuit Court
040532848
A129555

Michael H. Marcus, Judge.

On appellant's petition for reconsideration filed March 19, 2009.  Opinion filed December 5, 2007.  216 Or App 404, 173 P3d 1231.

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

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

PER CURIAM

The state petitions this court to reconsider its decision in State v. Wick, 216 Or App 404, 173 P3d 1231 (2007), rev den, 344 Or 671 (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 Or Laws 2005, ch 463.  The state now contends that, in light of Oregon v. Ice, 555 US ___, 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.