FILED: April 29, 2009

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

KENNETH ABRAHAM PALFENIER,

Defendant-Appellant.

Washington County Circuit Court
C052447CR
A133430

Steven L. Price, Judge.

On respondent's petition for reconsideration filed March 19, 2009.  Opinion filed May 7, 2008.  219 Or App 655, 184 P3d 1163.

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.

PER CURIAM

Reconsideration allowed; former opinion withdrawn; affirmed.

PER CURIAM

The state petitions for reconsideration of our decision in this case, State v. Palfenier, 219 Or App 655, 184 P3d 1163 (2008).  In that decision, we accepted the state's concession that, under the Oregon Supreme Court's decision in State v. Ice, 343 Or 248, 170 P3d 1049 (2007), the trial court erred in imposing consecutive sentences based on facts found by the court rather than by a jury.  Since then, however, the United States Supreme Court has reversed the Oregon Supreme Court's decision, Oregon v. Ice, ___ US ___, 129 S Ct 711, 172 L Ed 2d 517 (2009), holding that the constitutional right to a jury trial does not apply to decisions to impose consecutive sentences.  In light of the United States Supreme Court's decision, we agree that the trial court did not err.

Reconsideration allowed; former opinion withdrawn; affirmed.


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