Oregon Supreme Court applies Apprendi to consecutive sentences

Providing a great reminder that there are still many unsettled Blakely issues, the Oregon Supreme Court today in State v. Ice, No. S52248 (Ore. Oct. 11, 2007) (available here), holds that the “federal constitution requires that a jury, rather than a judge, find the facts that Oregon law requires be present before a judge can impose consecutive sentences.”  All Blakely fans should make the time to check out Ice.

The majority’s opinion in Ice is cool for many reasons: it has a thoughtful discussion of state constitutional law, it effectively reviews the Apprendi line of cases, and it essentially castigates other state supreme courts for reading Apprendi too narrowly.  But the dissent in Ice is also cool: it notes the long tradition of judges deciding whether to impose consecutive or concurrent sentences, it accuses the majority of “extending the rule in Apprendi farther than either the holding or the reasoning in that case warrants,” and it documents that nearly every court “that has considered this [consecutive sentencing] question has held that Apprendi does not apply in this context.”

Because Ice deepens a split over the reach of Apprendi and Blakely, the case might be viewed as quite cert worthy if Oregon decides to appeal Ice to the US Supreme Court.