FILED: April 29, 2009

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

LARRY WAYNE LOFTIN,

Defendant-Appellant.

Washington County Circuit Court
C053471CR
A132948

Mark Gardner, Judge.

On respondent's petition for reconsideration filed March 19, 2009.  Opinion filed February 20, 2008.  218 Or App 160, 178 P3d 312.

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

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

HASELTON, P. J.

Reconsideration allowed; former disposition withdrawn; former opinion modified and adhered to as modified; affirmed.

HASELTON, P. J.

The state petitions, based on Oregon v. Ice, ___ US ___, 129 S Ct 711, 172 L Ed 2d 517 (2009), for reconsideration of our decision in this case.  State v. Loftin, 218 Or App 160, 178 P3d 312 (2008) (Loftin I).  For the reasons that follow, we allow reconsideration, adhere to our prior opinion as modified, vacate our prior disposition, and affirm the imposition of the consecutive sentences.

In Loftin I, defendant contended that, under the Oregon Supreme Court's then-recent decision in State v. Ice, 343 Or 248, 170 P3d 1049 (2007), the trial court had "erred in imposing sentences that were partially consecutive to each other * * * based on the court's finding made pursuant to ORS 137.123(5)(a)."  218 Or App at 162.  The state responded that (1) State v. Ice was wrongly decided, and (2) in all events, regardless of whether State v. Ice was correct, the sentencing court was "right for the wrong reason" because ORS 137.123(5) should be construed in such a way as to render the sentence imposed in Loftin I materially distinguishable from that at issue in State v. IceSee Loftin I, 218 Or App at 164-65.  In particular, the state argued that, because defendant had been convicted of two offenses of equally "serious" crime classification, the trial court was authorized, as a matter of law, to impose a consecutive sentence without any reference to the requirements of ORS 137.123(5), including the requirement of predicate findings.(1)  Thus, the state reasoned, although the sentencing court had, in imposing the consecutive sentence, rendered a finding in accordance with ORS 137.123(5), that judicial finding was gratuitous--and, consequently, State v. Ice was inapposite.  Loftin I, 218 Or App at 164-65, 167-68.

We held that State v. Ice was controlling, requiring a remand for resentencing.  Loftin I, 218 Or App at 170.  In so holding, we addressed in detail, and rejected, the state's alternative statutory construction argument that the requirements of ORS 137.123(5), including the requirement of predicate findings, are inapposite to the circumstance in which a defendant has been convicted of two or more offenses of equally "serious" crime classification.  Loftin I, 218 Or App at 167-70.  That analysis focused on the question of whether, or in what circumstances, predicate findings are required for the imposition of consecutive sentences--as opposed to the question (in Ice) of who must make such findings when they are required.  Thus, our opinion in Loftin I addressed and resolved an important question of Oregon statutory construction pertaining to the imposition of consecutive sentences that was, and is, distinct from the constitutional question presented in Ice.

In the wake of Oregon v. Ice, our statutory construction analysis in Loftin I could be regarded, retroactively, as "dicta"--after all, that discussion, albeit essential to our disposition at that time, would never have been necessary but for State v. Ice.  Given that posture, we could as a prudential matter--as we have in some other Ice "second wave" reconsideration cases(2)--simply vacate our original opinion in its entirety and alter our disposition.  We decline to do so here because of the continuing significance, beyond the circumstances of this case, of the statutory issue that we properly and necessarily addressed in Loftin I.  Rather, we (1) modify our prior opinion to delete those portions that state that State v. Ice is controlling and requires a remand for resentencing, see 218 Or App at 162, 170; (2) adhere to our prior opinion as so modified; (3) vacate our prior disposition in the light of Oregon v. Ice; and (4) affirm.

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


1. ORS 137.123(5) provides:

"The court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of conduct only if the court finds:

"(a)  That the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant's willingness to commit more than one criminal offense; or

"(b)  The criminal offense for which a consecutive sentence is contemplated caused or created a risk of causing greater or qualitatively different loss, injury or harm to the victim or caused or created a risk of causing loss, injury or harm to a different victim than was caused or threatened by the other offense or offenses committed during a continuous and uninterrupted course of conduct."

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2. See, e.g., State v. Hall, 227 Or App 504, ___ P3d ___ (2009); see also State v. Palfenier, ___ Or App ___, ___ P3d ___ (Apr 29, 2009); State v. Hill, ___ Or App ___, ___ P3d ___ (Apr 29, 2009).

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