Ice did not overrule Mallory
Ryan Scott from the pond:
Note the following two paragraphs from an opinion this morning from the COA. It's boring, it's bland, but there's a subtlety I want to point out.
The state appeals in this criminal case, raising various challenges to the trial court's imposition of sentence following defendant's convictions for attempted first-degree assault (Count 1), two counts of unlawful use of a weapon (Counts 2 and 3), and one count each of possession of methamphetamine and delivery of methamphetamine (Counts 4 and 5). Specifically, the state contends that the trial court erred in concluding that (1) it was precluded, under the principles announced in Apprendi v. New Jersey, 530 US 466, 490, 120 S Ct 2348, 147 L Ed 2d 435 (2000) ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."), from determining whether defendant's convictions on Counts 1 through 3 counted as part of his criminal history for purposes of Counts 4 and 5; (2) it lacked authority under the rule of Apprendi to impose consecutive sentences based on facts found by the trial court rather than the jury; and (3) "the people of Oregon" were not the victim of defendant's drug offenses for consecutive sentencing purposes. The issue raised by the state's second argument has since been resolved in the state's favor by the United States Supreme Court in Oregon v. Ice, ___ US ___, 129 S Ct 711, 172 L Ed 2d 517 (2009) (judicial factfinding in support of consecutive sentences does not violate the Sixth Amendment). The trial court erred in its conclusion to the contrary. Because that error requires us to remand the case for resentencing, ORS 138.222(5)(a), and it is not certain that the other issues will again arise on remand, we decline to address them."
Note that the COA only acknowledges that (2) was overruled by Oregon v. Ice. (1) was not. The issue in (1) is still very much worth arguing when appropriate, because Ice did not overrule State v. Mallory.