FILED: March 28, 2007
IN THE COURT OF APPEALS OF THE STATE OF OREGON
STATE OF OREGON,
BRANDON DAVID CARSON,
Curry County Circuit Court
Hugh C. Downer, Jr., Judge.
Submitted on record and briefs February 28, 2007.
Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, Legal Services Division, and David C. Degner, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Jonathan H. Fussner, Attorney-In-Charge, Criminal Appeals Unit, filed the brief for respondent.
Before Landau, Presiding Judge, and Schuman and Ortega, Judges.
Defendant pleaded guilty and was convicted of one count of first-degree sexual abuse, one count of first-degree unlawful sexual penetration, and one count of first-degree sodomy. For each conviction, the trial court imposed the mandatory minimum sentence pursuant to ORS 137.700. The court also ordered that the sentences be served consecutively, based on its determination that the crimes of conviction did not arise from the same continuous and uninterrupted course of conduct. ORS 137.123(2). Defendant's total term of imprisonment was 275 months.
On appeal, defendant argues that the trial court erred under Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000), and Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004), by imposing consecutive sentences based on facts that he did not admit and that were not found by a jury. In State v. Tanner, 210 Or App 70, 150 P3d 31 (2006), we held that the imposition of consecutive sentences pursuant to ORS 137.123(5) based on facts found by the trial court does not run afoul of the Sixth Amendment principles articulated in Apprendi and Blakely. Although Tanner involved a challenge to consecutive sentences imposed pursuant to ORS 137.123(5), the reasoning of that case applies with equal force in the context of a challenge to sentences imposed pursuant ORS 137.123(2).