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Consecutive sentences and the Constitution.

Article Excerpt
In Oregon v. Ice, (1) the Supreme Court dealt with a sentencing issue that comes up frequently and has caused confusion in state courts: If a judge must find a fact to impose consecutive sentences on a convicted defendant for related crimes, does the fact-finding requirement violate the Sixth Amendment right to a jury trial as laid out in Apprendi v. New Jersey? (2)

In Apprendi, the Court held that "any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." (3) On the face of it, it might seem that the trial judge's fact-finding in Ice did violate the defendant's Sixth Amendment rights, and this is, in fact, how the state's high court ruled. But the Supreme Court reached a different conclusion.

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Thomas Eugene Ice was convicted of six crimes that occurred in two separate incidents in 1996 and 1997. On each occasion, he entered an apartment in the complex he managed and sexually assaulted an 11-year-old girl. Both times, he fondled her breasts and vagina.

Under Oregon law, each instance of fondling constituted a separate offense, as did the two illegal entries, so Ice was convicted of two counts of burglary and four counts of sexual abuse. Oregon law does not follow the common law practice that imposing consecutive or concurrent sentences is within the trial judge's discretion; rather, it requires that...