Oregon going back to the US Supreme Court

The state of Oregon will be back in front of the US Supreme Court this fall.  Briefing has just begun.  The case, Oregon v. Ice, is a Sixth Amendment challenge to a trial court's sentencing order requiring the defendant serve his sentences consecutively rather than concurrently. 

In Oregon, if a criminal defendant is charged with more than one offense that occurred within a single criminal episode, the defendant ordinarily is permitted to serve the sentences he or she receives as a result of the convictions concurrently rather than consecutively.  The trial court may order the defendant to serve his or her sentences consecutively, however, if the court makes certain prerequisite factual findings.  See ORS 137.123(5) (stating findings necessary to impose consecutive sentences for convictions arising out of a continuous and uninterrupted course of conduct). 

In Ice, the defendant was charged and ultimately found guilty by a Marion County jury of two counts of first-degree burglary and four counts of first-degree sexual abuse.  The charges stemmed from two episodes in which the defendant broke into an apartment and abused an 11-year old girl. 

The state argued in its sentencing memorandum that there were two separate criminal episodes based on the two burglaries and that the sentences arising out of each of those criminal episodes should be served consecutively.  The state also argued that 2 of the 4 sentences for sexual abuse should be served consecutively.  The court ultimately sentenced defendant in accordance with the recommendations made by the state. 

Defendant appealed, arguing that under both the state and federal constitutions, he had a right to have the jury decide the facts on which the court based its decision to impose consecutive sentences.  Defendant argues that, under the Sixth Amendment of the US Constitution as interpreted by the Supreme Court in Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004) and Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000), he is entitled to have a jury make the requisite factual findings in support of the order requiring him to serve his sentences consecutively rather than concurrently. 

The Oregon Court of Appeals affirmed the trial court's judgment without opinion.  The Oregon Supreme Court denied those of defendant's arguments that were based on the Oregon Constitution, but agreed with defendant that the Sixth Amendment requires a jury to make the factual findings pursuant to ORS 137.123 before a court can order a defendant to serve his or her sentences consecutively rather than concurrently.  The Oregon Supreme Court reversed and remanded the case.  The state petitioned for certiorari with the US Supreme Court.  The Court accepted cert and briefing has just begun.

For the Oregon Supreme Court opinion, see:   http://www.publications.ojd.state.or.us/S52248.htm

For the State's opening brief, see:  http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-901_Petitioner.pdf

For another primer, see: http://www.crimeandconsequences.com/2008/06/a_precursor_to_oregon_v_ice.html

For Amicus briefs filed in support of the state, see: http://www.abanet.org/publiced/preview/briefs/oct08.shtml#oregon       (scroll down)

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