Opinion
Nos. 06FE0017MS; A135311.
Argued and submitted November 25, 2008.
December 31, 2008.
Appeal from the Deschutes County Circuit Court. Michael C. Sullivan, Judge.
Eric Johansen, Senior Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Legal Services Division, Office of Public Defense Services.
Tiffany Keast, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.
Before Landau, Presiding Judge, and Ortega, Judge, and Carson, Senior Judge.
PER CURIAM
Remanded for resentencing; otherwise affirmed.
In this criminal case, defendant appeals a judgment of conviction for five counts of sexual abuse in the first degree and one count of unlawful sexual penetration in the second degree. At sentencing, based on its findings relating to the circumstances of the commission of the offenses, the trial court ordered that the sentences on certain convictions be served consecutively to the sentences on the other convictions. See ORS 137.123(2). On appeal, defendant contends, as he did below, that the trial court erred in imposing consecutive sentences on the basis of its own factual findings, as opposed to the jury's factual findings. The state concedes that, under State v. Ice, 343 Or 248, 170 P3d 1049 (2007), cert granted, ___ US ___, 128 S Ct 1657 (2008), the trial court erred and that the case must be remanded for resentencing. We agree that, under Ice, defendant is correct and that the state's concession is appropriate.
Remanded for resentencing; otherwise affirmed.