State v. Palfenier

206 P.3d 1179, 228 Or. App. 233

• Court: Court of Appeals of Oregon
• Decided: April 29, 2009
• Docket: C052447CR A133430
• Status: Published

Opinion

206 P.3d 1179 (2009) 228 Or. App. 233

STATE of Oregon, Plaintiff-Respondent,
v.
Kenneth Abraham PALFENIER, Defendant-Appellant.

C052447CR; A133430.

Court of Appeals of Oregon.

On Respondent's Petition for Reconsideration March 19, 2009. Decided April 29, 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 HASELTON, Presiding Judge, and ARMSTRONG, Judge, and ROSENBLUM, Judge.

PER CURIAM.

The state petitions for reconsideration of our decision in this case, State v. Palfenier, 219 Or.App. 655, 184 P.3d 1163 (2008). In that decision, we accepted the state's concession that, under the Oregon Supreme Court's decision in State v. Ice, 343 Or. 248, 170 P.3d 1049 (2007), the trial court erred in imposing consecutive sentences based on facts found by the court rather than by a jury. Since then, however, the United States Supreme Court has reversed the Oregon Supreme Court's decision, Oregon v. Ice, ___ U.S. ___, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), holding that the constitutional right to a jury trial does not apply to decisions to impose consecutive sentences. In light of the United States Supreme Court's decision, we agree that the trial court did not err.

Reconsideration allowed; former opinion withdrawn; affirmed.