State v. Wilson , 228 Or. App. 365 ( 2009 )

208 P.3d 523 (2009) 228 Or. App. 365

STATE of Oregon, Plaintiff-Respondent,
v.
Gregory Paul WILSON, Defendant-Appellant.

920834764; A121457.

Court of Appeals of Oregon.

Appellant's Response to Respondent's Petition for Reconsideration March 24, 2009. Respondent's Reply to Appellant's Response to Respondent's Petition for Reconsideration April 16, 2009. On Respondent's Petition for Reconsideration March 19, 2009. Decided May 13, 2009.

John R. Kroger, Attorney General, Erika L. Hadlock, Acting Solicitor General, and Paul L. Smith, Assistant Attorney-in-Charge, Criminal Appeals, for petition. On the reply were Jerome Lidz, Solicitor General, and Doug M. Petrina, Senior Assistant Attorney General.

Richard L. Wolf, Portland, for response.

Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and ROSENBLUM, Judge.

PER CURIAM.

The state petitions, based on Oregon v. Ice, ___ U.S. ___, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), for reconsideration of our decision in this case. State v. Wilson, 216 Or.App. 226, 173 P.3d 150 (2007). For the reasons that follow, we allow reconsideration, withdraw our former disposition, modify our former opinion in part and adhere to it as modified, and affirm.

In Wilson, defendant raised a variety of challenges to his convictions and sentences, and we rejected all of those challenges, except for defendant's contention, based on State v. Ice, 343 Or. 248, 170 P.3d 1049 (2007), that the trial court had erred in imposing a consecutive sentence based on judicial findings. Wilson, 216 Or.App. at 228-37, 173 P.3d 150. Accordingly, we affirmed defendant's convictions and remanded for resentencing. Id.

We agree with the state that, in light of Oregon v. Ice, the trial court did not err in imposing the disputed consecutive sentence. Consequently, we: (1) modify our former opinion to delete those portions that state that State v. Ice is controlling and requires a remand for resentencing, see Wilson, 216 Or.App. at 228, 237, 173 P.3d 150; (2) adhere to our former opinion as so modified; (3) withdraw our prior disposition in light of Oregon v. Ice; and (4) affirm.^[1]

Reconsideration allowed; former disposition withdrawn; former opinion modified and adhered to as modified; affirmed.

NOTES

[1] We agree with the state that, notwithstanding defendant's service of the incarcerative term of the consecutive sentence, because of collateral consequences pertaining to the term of post-prison supervision for that sentence this matter is not moot.