State v. Miller

202 P.3d 919, 226 Or. App. 78, 2009 Ore. App. LEXIS 75

Opinion

PER CURIAM

This case comes to us on remand from the Supreme Court. State v. Miller, 345 Or 176, 191 P3d 651 (2008). Defendant was convicted of a number of drug-related offenses and appealed those convictions on the ground that the trial court erred in denying his motion to suppress certain evidence that was obtained after he was restrained by police. We held that the trial court indeed erred in denying defendant’s motion to suppress, and we therefore reversed defendant’s convictions. State v. Miller, 211 Or App 667, 156 P3d 125 (2007). On review, the Supreme Court disagreed with our holding regarding the motion to suppress and instead affirmed defendant’s convictions. 345 Or at 188-89. The court then remanded the case to this court to consider defendant’s other assignment of error, which concerned his sentences — an assignment that this court had not reached in the first instance. Id. at 189.

The lone question before us on remand is whether the trial court erred in imposing consecutive sentences. According to defendant, the trial court violated his Sixth Amendment right to a jury trial when the court itself found the facts necessary to impose consecutive sentences under ORS 137.123(5). Defendant’s argument is foreclosed by Oregon v. Ice, 555 US_, 129 S Ct 711, 172 L Ed 2d 517 (2009), in which the United States Supreme Court rejected that same contention.

Affirmed.