State v. BIGHOUSE , 228 Or. App. 528 ( 2009 )

209 P.3d 356 (2009) 228 Or. App. 528

STATE of Oregon, Plaintiff-Respondent,
v.
Richard Carl BIGHOUSE, aka Richard Earl Bighouse, Defendant-Appellant.

Nos. C033240CR, C040163CR, C041507CR, A126980 (Control), A126981, A126982.

Court of Appeals of Oregon, En Banc.

On Respondent's Petition for Reconsideration March 19, 2009. Decided May 20, 2009.

John R. Kroger, Attorney General, Erika L. Hadlock, Acting Solicitor General, and Paul L. Smith, Assistant Attorney-in-Charge, for petition.

Before BREWER, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, WOLLHEIM, SCHUMAN, ORTEGA, ROSENBLUM, and SERCOMBE, Judges.

PER CURIAM.

The state seeks reconsideration of our decision in State v. Bighouse, 223 Or.App. 261, 196 P.3d 538 (2008). In Bighouse, we affirmed defendant's convictions but remanded for resentencing. The state now contends that, in light of Oregon v. Ice, 555 U.S. ___, 129 S. Ct. 711, 172 L. Ed. 2d 517 (2009), we erred in concluding that the imposition of consecutive sentences under ORS 137.123(5) requires findings by a jury rather than a judge. We agree and, accordingly, modify our opinion and affirm.

Reconsideration allowed; former opinion modified and adhered to as modified; former disposition withdrawn; affirmed.