FILED: May 27, 2009
IN THE COURT OF APPEALS OF THE STATE OF OREGON
STATE OF OREGON,
Washington County Circuit Court
Mark Gardner, Judge.
On respondent's petition for reconsideration filed March 19, 2009.� Opinion filed June 18, 2008.� 220 Or App 470, 188 P3d 305.
John R. Kroger, Attorney General, Erika L. Hadlock, Acting Solicitor General, and Paul L. Smith, Assistant Attorney-in-Charge, Criminal Appeals, for petition.
Before Landau, Presiding Judge, and Schuman, Judge, and Ortega, Judge.
Reconsideration allowed; former opinion and disposition withdrawn; affirmed.
The state petitions for reconsideration of our decision in this case.� In that decision, we concluded that, based on the Oregon Supreme Court's decision in State v. Ice, 343 Or 248, 170 P3d 1049 (2007), rev'd and rem'd, ___ US ___, 129 S Ct 711, 172 L Ed 2d 517 (2009), the trial court's imposition of consecutive sentences based on its own findings of fact was plain error.� The state now argues that, in light of the United States Supreme Court's reversal of the Oregon court's decision, we should reconsider.� We agree.� Under the United States Supreme Court's decision, the imposition of consecutive sentences was not error.
There remains an issue that we did not reach in our earlier decision, namely, whether the trial court committed plain error in denying defendant consideration for sentence modification programs under ORS 137.750.� Defendant's contention that the trial court committed plain error is foreclosed by our decision in State v. Vigil, 197 Or App 407, 106 P3d 656, adh'd to as modified on recons, 199 Or App 525, 112 P3d 441, rev den, 339 Or 156 (2005).
Reconsideration allowed; former opinion and disposition withdrawn; affirmed.�