S054997, Opinion — State v. Hagberg

272
On petition for reconsideration filed by respondent on review on February 23,*
respondent's motion for waiver of time limit set out in ORAP 9.25(1) allowed;
petition for reconsideration allowed; on reconsideration, former opinion
withdrawn; decision of Court of Appeals and judgment of circuit court
affirmed October 22, 2009
STATE OF OREGON,
Respondent on Review,
v.
CHRISTOPHER LOUIS HAGBERG,
Petitioner on Review.
(CC 2004-13017; CAA128398; SC S054997)
220 P3d 47
* 345 Or 161, 190 P3d 1209 (2008).

Cite as 347 Or 272 (2009) 	273
CJS, Criminal Law § 1702.
En Banc
Paul L. Smith, Assistant Attorney General, Salem, filed
the petition for reconsideration for respondent on review.
With him on the petition were John R. Kroger, Attorney
General, and Erika L. Hadlock, Acting Solicitor General.
No appearance contra.
GILLETTE, J.
Respondent's motion for waiver of the time limit set out in
ORAP 9.25(1) is allowed. The petition for reconsideration is
allowed. On reconsideration, the former opinion is with-
drawn. The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.

GILLETI'E, J.
The state seeks reconsideration of this court's opin-
ion in State v. Hagberg, 345 Or 161, 190 P3d 1209 (2008). In
Hagberg, this court held that a trial court had committed con-
stitutional error in requiring the defendant to serve his sen-
tences on two convictions consecutively, in the absence ofjury
findings that would support imposition of consecutive sen-
tences. In so holding, this court rejected the state's contention
that the required findings were inherent in the jury's guilty
verdicts. The state now correctly points out that the opinion
in Hagberg relied on the rationale of this court's decision in
State u. Ice, 343 Or 248, 170 P3d 1049 (2007), and argues
that, in light of the subsequent reversal of that decision by
the United States Supreme Court in Oregon u. Ice, 555 US
__ , 129 S Ct 711, 172 L Ed 2d 517 (2009), this court's deci-
sion in Hagberg was incorrect. We agree. The question
remains-what consequence does that have in this case?
Defendant was convicted of multiple sexual offenses,
including two counts of rape in the first degree, committed
against his girlfriend's daughter. The trial court imposed
mandatory prison terms for each offense. See ORS 137.700
(requiring imposition of mandatory minimum sentences for
certain felonies). With respect to the two rape offenses, the
trial court further ordered that the sentences for those
offenses be served consecutively. See ORS 137.123(2); 1 see
also Hagberg, 345 Or at 164 (reciting history).
Defendant objected to the consecutive sentences,
arguing that they could be imposed constitutionally only if
the jury-not the trial court-made the predicate factual
finding under ORS 137.123(2) that the two rapes "d[id] not
arise from the same continuous and uninterrupted course of
conduct." The trial court responded to that argument both by
making its own finding and by asserting that the jury also
had made an adequate finding:
1 ORS 137.123(2) provides, in part:
"If a defendant is simultaneously sentenced for criminal offenses that do
not arise from the same continuous and uninterrupted course of conduct * * *
the court may impose a [consecutive sentence]."

Cite as 34 7 Or 272 (2009) 	275
" '[T]he court, having read the jury instructions that Count
2 is a separate and distinct act from Count 1, the court
makes that finding that it is a separate and distinct act as
well.
" 'The jury has made that finding in fact. And the court
is sentencing you on Count 2 as consecutive to Count l.' "
Id. at 164 (quoting trial court). Defendant appealed the trial
court's constitutional ruling to the Court of Appeals, which
affirmed without opinion. State v. Hagberg, 211 Or App 712,
156 P3d 174 (2007). As noted, defendant then sought discre-
tionary review of that issue in this court and this court
allowed review and reversed, based on its decision in Ice.
And, as also noted, it now is settled law that this court's rea-
soning in Ice was incorrect. 2
Ordinarily, we would simply withdraw a decision in
this posture and announce an appropriate disposition. How-
ever, we choose, for the sake of completeness, to address two
additional questions that the case presents.
The first question involves appellate procedure, viz.,
whether the state's petition for reconsideration is timely
under ORAP 9.25(1). We set out the procedural history of this
case to provide a framework for our answer. On March 17,
2008, the United States Supreme Court allowed the state's
petition for a writ of certiorari in State v. Ice. While Ice was
awaiting disposition in that court, this court issued its origi-
nal decision in Hagberg on July 31, 2008. The state did not
file a petition for reconsideration in Hagberg. Instead, on
October 23, 2008, it moved this court to recall the appellate
judgment and to stay issuance of the judgment until the
United States Supreme Court issued its decision in Ice. This
court allowed the state's motion on November 6, 2008. The
United States Supreme Court issued its decision in Ice on
January 14, 2009. The United States Supreme Court issued
its mandate to this court on February 17, 2009. Finally,
the state filed the present petition for reconsideration on
February 23, 2009.
2 On remand from the United States Supreme Court, this court modified its
original decision in Ice to reflect the higher court's reversal. State v. Ice, 346 Or 45,
204 P3d 1290 (2009).

276 	State v. Hagberg
The state notes in its petition for reconsideration that
it assumes that this court's recall of the appellate judgment
suspended the ordinary rule pertaining to filing petitions for
reconsideration. The state notes, however, that, "in an abun-
dance of caution, [it] moves this court for relief from default
for filing this petition more than 14 days after this court's
decision in this case." The relevant rule, ORAP 9.25(1), pro-
vides, in part:
"A party seeking reconsideration of a decision of the
Supreme Court shall file a petition for reconsideration
within 14 days after the date of the decision."
(Emphasis added.) As our recitation of the procedural history
of this case shows, the state's petition for reconsideration was
not filed within 14 days of our decision. And, as the empha-
sized "shall" in the statute makes clear, compliance with the
14-day time limit in ORAP 9.25(1) is mandatory: To be
timely, a petition for reconsideration of a decision of this
court must be filed within that time period. The state's con-
trary assumption, viz., that recall of the appellate judgment
somehow modified the effect of ORAP 9.25(1) by suspending
the time limit, is incorrect.
That holding does not end the matter, however. This
court has reserved authority to waive "any" rule "[f]or good
cause." ORAP 1.20(5). 3 That power includes authority to
waive application of ORAP 9.25(1). And, in cases like this
one, where the reason for seeking reconsideration is to give
this court the opportunity to conform its decision with an
authoritative ruling of the United States Supreme Court, we
think that it would be illogical to refuse, on the ground of
untimeliness, to consider a petition for reconsideration based
on that authoritative ruling. In other words, although the
state's motion for reconsideration was not timely, the delay
was "[f]or good cause." We therefore choose to exercise our
discretion and waive the 14-day time limit of ORAP 9.25(1).
ORAP 1.20(5). The state's petition for reconsideration is
properly before us.
3 ORAP 1.20(5) provides:
. "For good c~use, the court on its own motion or on motion of any party may
waive any rule.

Cite as 34 7 Or 272 (2009) 	277
The other issue that this case presents is one of pres-
ervation. As noted, this court issued its earlier decision in
this case based on a faulty constitutional premise, viz., that
the Sixth Amendment to the United States Constitution
required that a jury, rather than a trial court, make the find-
ings of fact required by ORS 137.123. As to that premise, the
United States Supreme Court has reached a different conclu-
sion than did this court. However, the fact that a jury need
not make the requisite findings does not relieve a trial court
from making them, as the statute by its terms requires. It
thus could be argued that, before this court withdraws its for-
mer opinion and affirms the decision of the Court of Appeals
and the judgment of the trial court, it should determine
whether the trial court properly carried out its statutory role
under ORS 137.123.
We decline to conduct the inquiry involved in that
further step, however, because defendant never raised a sep-
arate issue addressing the judge's compliance with ORS
137.123 before the trial court, the Court of Appeals, or this
court. The question is not preserved, and we do not choose to
address it.
Respondent's motion for waiver of the time limit set
out in ORAP 9.25(1) is allowed. The petition for reconsidera-
tion is allowed. On reconsideration, the former opinion is
withdrawn. The decision of the Court of Appeals and the
judgment of the circuit court are affirmed.