S052248, Opinion — State v. Ice

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Submitted on remand from the United States Supreme Court on February 17,*
court's decision in State v. Ice, 343 Or 248, 170 P3d 1049 (2007), modified;
decision of Court of Appeals and judgment of circuit court affirmed
March 26, 2009

STATE OF OREGON,
Respondent on Review,
v.
THOMAS EUGENE ICE,
Petitioner on Review.
(CC 99C49779; CA A111668; SC S052248)
204 P3d 1290

En Banc

Ernest G. Lannet, Deputy Public Defender, Salem, filed
the briefs for petitioner on review. With him on the briefs
were Peter A. Ozanne, Executive Director, and Peter
Gartlan, Chief Defender, Office of the Public Defense
Services.

Jonathan H. Fussner, Assistant Attorney General, Salem,
filed the briefs for respondent on review. With him on the
briefs were Hardy Myers, Attorney General, and Mary H.
Williams, Solicitor General.

# PER CURIAM

The court's decision in State v. Ice, 343 Or 248, 170 P3d
1049 (2007), is modified. The decision of the Court of Appeals
and the judgment of the circuit court are affirmed.

\* Oregon v. Ice, 555 US
129 S Ct 711, 172 L Ed 2d 517 (2009).

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# PER CURIAM

In State v. Ice, 343 Or 248, 170 P3d 1049 (2007), this
court rejected defendant's contention that Article I, section
11, of the Oregon Constitution requires that a jury, rather
than a judge, find the facts that, under Oregon law, must be
present before a judge can impose consecutive sentences. At
the same time, however, the court held that the Sixth
Amendment to the United States Constitution, as inter-
preted by the United States Supreme Court in Apprendi v.
New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435
(2000), and Blakely v. Washington, 542 US 296, 124 S Ct
2531, 159 L Ed 2d 403 (2004), does impose such a require-
ment. On certiorari, the United States Supreme Court
reversed and remanded, holding that, contrary to this court's
decision, the Sixth Amendment does not prohibit states from
assigning to judges, rather than to juries, the task of finding
the facts necessary for imposition of consecutive sentences.
Oregon v. Ice, 555 US __ , 129 S Ct 711, 172 L Ed 2d 517
(2009). On remand, we modify the part of the court's previous
opinion that addresses the jury trial provision in the Sixth
Amendment: We now hold that the trial court did not violate
defendant's Sixth Amendment rights when it imposed a con-
secutive sentence based on the trial judge's fact-finding. We
adhere to the court's earlier conclusion that Article I, section
11, of the Oregon Constitution similarly does not require that
a jury make the factual findings necessary for imposition of
consecutive sentences.

The court's decision in State v. Ice, 343 Or 248, 170
P3d 1049 (2007), is modified. The decision of the Court of
Appeals and the judgment of the circuit court are affirmed.