State v. Gilliland

Court of Appeals of Oregon

State v. Gilliland

208 P.3d 980, 228 Or. App. 358, 2009 Ore. App. LEXIS 446

CourtCourt of Appeals of Oregon

DecidedMay 13, 2009

Docket200222983, A120741

StatusPublished

This text of 208 P.3d 980 (State v. Gilliland) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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State v. Gilliland, 208 P.3d 980, 228 Or. App. 358, 2009 Ore. App. LEXIS 446 (Or. Ct. App. 2009).

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Opinion

*359 PER CURIAM

The state petitions for reconsideration. In State v. Gilliland, 223 Or App 279, 196 P3d 13 (2008), we affirmed defendant’s conviction but remanded for resentencing in light of State v. Ice, 343 Or 248, 170 P3d 1049 (2007), rev’d and rent’d sub nont Oregon v. Ice, 555 US_, 129 S Ct 711, 172 L Ed 2d 517 (2009), and because the trial court had imposed a durational departure sentence on the basis of its own judicial findings of fact. For the reasons that follow, we allow reconsideration and adhere to our opinion as modified.

At defendant’s sentencing for a variety of convictions, the trial court imposed a durational departure sentence of 26 months’ imprisonment on defendant’s conviction for unauthorized use of a vehicle. Gilliland, 223 Or App at 281. The trial court also imposed a dispositional and dura-tional departure sentence of 12 months’ imprisonment on defendant’s conviction for attempting to elude in a vehicle. The trial court found that the durational departure sentences were justified because defendant was on probation when he committed the offenses, because the harm resulting from his conduct was greater than typical, and because defendant had been persistently involved in similar offenses. Id. The court ordered that the 12-month sentence be served consecutively to the 26-month sentence, after finding pursuant to ORS 137.123(5)(a) that defendant’s acts of unauthorized use of a vehicle and attempting to elude were not merely incidental to the other crimes that defendant had committed.

On appeal, we remanded for resentencing based on both the departures and the consecutive sentences. See id. at 284-85. We discerned no evidence in the record demonstrating that the jury necessarily found the durational and dispos-itional departure factors identified by the trial court. We also could not infer from the jury verdict forms or the court’s instructions that the jury necessarily found the consecutive sentencing factor that the trial court relied on. Id. Accordingly, we remanded for resentencing.

As the state correctly notes, a portion of this case is now controlled by the United States Supreme Court’s decision in Ice and, thus, that portion of our former opinion rejecting the court’s imposition of the consecutive sentence is now *360 superseded. A remand for resentencing is still warranted, however, because our conclusion that no evidence in the record established that the jury necessarily found the dura-tional departure sentencing factors relied on by the trial court is unaffected by the intervening change in the law wrought by Ice. Accordingly, that portion of our opinion retains its force.

Reconsideration allowed; former opinion modified and adhered to as modified; remanded for resentencing.

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*359 PER CURIAM

The state petitions for reconsideration. In State v. Gilliland, 223 Or App 279, 196 P3d 13 (2008), we affirmed defendant’s conviction but remanded for resentencing in light of State v. Ice, 343 Or 248, 170 P3d 1049 (2007), rev’d and rent’d sub nont Oregon v. Ice, 555 US_, 129 S Ct 711, 172 L Ed 2d 517 (2009), and because the trial court had imposed a durational departure sentence on the basis of its own judicial findings of fact. For the reasons that follow, we allow reconsideration and adhere to our opinion as modified.

At defendant’s sentencing for a variety of convictions, the trial court imposed a durational departure sentence of 26 months’ imprisonment on defendant’s conviction for unauthorized use of a vehicle. Gilliland, 223 Or App at 281. The trial court also imposed a dispositional and dura-tional departure sentence of 12 months’ imprisonment on defendant’s conviction for attempting to elude in a vehicle. The trial court found that the durational departure sentences were justified because defendant was on probation when he committed the offenses, because the harm resulting from his conduct was greater than typical, and because defendant had been persistently involved in similar offenses. Id. The court ordered that the 12-month sentence be served consecutively to the 26-month sentence, after finding pursuant to ORS 137.123(5)(a) that defendant’s acts of unauthorized use of a vehicle and attempting to elude were not merely incidental to the other crimes that defendant had committed.

On appeal, we remanded for resentencing based on both the departures and the consecutive sentences. See id. at 284-85. We discerned no evidence in the record demonstrating that the jury necessarily found the durational and dispos-itional departure factors identified by the trial court. We also could not infer from the jury verdict forms or the court’s instructions that the jury necessarily found the consecutive sentencing factor that the trial court relied on. Id. Accordingly, we remanded for resentencing.

As the state correctly notes, a portion of this case is now controlled by the United States Supreme Court’s decision in Ice and, thus, that portion of our former opinion rejecting the court’s imposition of the consecutive sentence is now *360 superseded. A remand for resentencing is still warranted, however, because our conclusion that no evidence in the record established that the jury necessarily found the dura-tional departure sentencing factors relied on by the trial court is unaffected by the intervening change in the law wrought by Ice. Accordingly, that portion of our opinion retains its force.

Reconsideration allowed; former opinion modified and adhered to as modified; remanded for resentencing.

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208 P.3d 980, 228 Or. App. 358, 2009 Ore. App. LEXIS 446, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gilliland-orctapp-2009.

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