State v. Palfenier

FILED: May 7, 2008

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.

Argued and submitted on April 11, 2008.

Laura Graser argued the cause and filed the brief for appellant.

Janet A. Metcalf, 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 Haselton, Presiding Judge, and Armstrong, Judge, and Carson, Senior Judge.

PER CURIAM

Sentences vacated; remanded for resentencing; otherwise affirmed.

PER CURIAM

Defendant was convicted of two counts of first-degree sexual abuse, ORS 163.427, two counts of first-degree unlawful sexual penetration, ORS 163.411, and one count of fourth-degree assault, ORS 163.160. On appeal, he challenges his convictions and his sentence. We reject without discussion defendant's challenges to his convictions. On the sexual abuse convictions, defendant received mandatory minimum sentences of 100 months for each conviction, ORS 137.700(2)(a)(P), and the court ordered that those sentences be served partially consecutively to one another, over defendant's objection that the imposition of consecutive sentences required factfinding by the jury. The court imposed concurrent sentences on the remaining convictions. On appeal, defendant argues that the court erred in imposing consecutive sentences based on judicial factfinding. The state acknowledges that this issue is controlled by State v. Ice, 343 Or 248, 260, 170 P3d 1049 (2007), cert granted, ___ US ___, 76 USLW 3393 (2008). We agree.

Sentences vacated; remanded for resentencing; otherwise affirmed.