STATE v. KARP

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Court of Appeals of Oregon.

STATE of Oregon, Plaintiff-Respondent, v. Damien Jay KARP, Defendant-Appellant.

C050534CR;  A130751.

Decided: May 28, 2008

Before EDMONDS, Presiding Judge, and BREWER, Chief Judge, and SERCOMBE, Judge. Daniel J. Casey argued the cause and filed the brief for appellant. Joanna Jenkins, Assistant Attorney General, argued the cause for respondent.   With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

 Defendant was convicted of a number of sex crimes committed against a 10-year-old girl.   On appeal, he makes two assignments of error.   First, he asserts, the trial court erred in admitting defendant's out-of-court statements about his having “a thing for little girls.”   Second, he argues that the trial court erred in imposing a partial consecutive sentence in the absence of jury findings to support it.   Because it is unpreserved, we reject his first claim of error.  ORAP 5.45(1).   However, we agree that the trial court erred in sentencing and, accordingly, we remand for resentencing.

In State v. Ice, 343 Or. 248, 170 P.3d 1049 (2007), cert. granted, --- U.S. ----, 128 S.Ct. 1657, 170 L.Ed.2d 353 (2008), the Oregon Supreme Court held that, to comply with the Sixth Amendment as interpreted by the United States Supreme Court in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), a trial court cannot impose consecutive sentences under ORS 137.123(5) unless the facts required by that statute are submitted to a jury and proved beyond a reasonable doubt.   That did not occur in this case.   The state argues that Ice does not require resentencing in this case because consecutive sentences are authorized “as a matter of law” under ORS 137.123(5)(a) for convictions of “equal seriousness.”   We rejected that argument in State v. Loftin, 218 Or.App. 160, 178 P.3d 312 (2008), decided after oral argument in this case.   See also State v. Mills, 219 Or.App. 225, 230, 182 P.3d 889 (2008) (same).

Remanded for resentencing;  otherwise affirmed.

PER CURIAM.