FILED: April 29, 2009

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

TUAN ANH NGUYEN,

Defendant-Appellant.

Multnomah County Circuit Court
040532737
A127563

Alicia A. Fuchs, Judge.

On respondent's petition for reconsideration filed March 19, 2009.  Opinion filed July 30, 2008.  221 Or App 440, 190 P3d 462.

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

Before Haselton, Presiding Judge, and Armstrong, Judge, and Rosenblum, Judge.

PER CURIAM

Reconsideration allowed; former disposition withdrawn; former opinion modified and adhered to as modified; affirmed.

PER CURIAM

Based on Oregon v. Ice, ___ US ___, 129 S Ct 711, 172 L Ed 2d 517 (2009), the state petitions for reconsideration of our decision in this case.  State v. Nguyen, 221 Or App 440, 190 P3d 462 (2008).  For the reasons that follow, we allow reconsideration, modify our prior opinion and adhere to it as modified, withdraw our prior disposition, and affirm.

In our prior opinion in this case, we affirmed defendant's convictions for robbery, kidnapping, and burglary, but, based on State v. Ice, 343 Or 248, 170 P3d 1049 (2007), we reversed the consecutive sentence that the trial court had imposed and remanded for resentencing.  Since then, the United States Supreme Court has reversed the Oregon Supreme Court's decision in State v. Ice.  See Oregon v. Ice, ___ US at ___, 172 L Ed 2d at 525 (holding that the federal constitutional right to a jury trial does not apply to decisions to impose consecutive sentences).  In light of Oregon v. Ice, we conclude that the trial court did not err in imposing a consecutive sentence in this case.  We therefore (1) modify our prior opinion to delete those portions that state that State v. Ice is controlling and require a remand for resentencing, see 221 Or App at 447-48; (2) adhere to our prior opinion as  modified; (3) withdraw our prior disposition; and (4) affirm.

Reconsideration allowed; former disposition withdrawn; former opinion modified and adhered to as modified; affirmed.


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