State v. Tuan Anh Nguyen

206 P.3d 1219, 228 Or. App. 241, 2009 Ore. App. LEXIS 332

Opinion

PER CURIAM

Based on Oregon v. Ice, 555 US_, 129 S Ct 711, 172 L Ed 2d 517 (2009), the state petitions for reconsideration of our decision in this case. State v. Nguyen, 221 Or App 440, 190 P3d 462 (2008). For the reasons that follow, we allow reconsideration, modify our prior opinion and adhere to it as modified, withdraw our prior disposition, and affirm.

In our prior opinion in this case, we affirmed defendant’s convictions for robbery, kidnapping, and burglary, but, based on State v. Ice, 343 Or 248, 170 P3d 1049 (2007), we reversed the consecutive sentence that the trial court had imposed and remanded for resentencing. Since then, the United States Supreme Court has reversed the Oregon Supreme Court’s decision in State v. Ice. See Oregon v. Ice, 555 US at_, 172 L Ed 2d at 525 (holding that the federal constitutional right to a jury trial does not apply to decisions to impose consecutive sentences). In light of Oregon v. Ice, we conclude that the trial court did not err in imposing a consecutive sentence in this case. We therefore (1) modify our prior opinion to delete those portions that state that State v. Ice is controlling and require a remand for resentencing, see 221 Or App at 447-48; (2) adhere to our prior opinion as modified; (3) withdraw our prior disposition; and (4) affirm.

Reconsideration allowed; former disposition withdrawn; former opinion modified and adhered to as modified; affirmed.