Opinion
89C-21518; CA A63724
Petition for reconsideration filed April 10, 1991 Reconsideration denied August 28, 1991
Petition for review denied October 29, 1991
Appeal from Circuit Court, Marion County.
C. Gregory West, Judge.
Steven H. Gorham, Salem, for petition.
No appearance by respondent.
Before Warren, Presiding Judge, and Riggs and Edmonds, Judges.
PER CURIAM
Reconsideration allowed; decision adhered to.
Defendant petitions for review of our decision that affirmed, without opinion, his convictions on three counts of assault in the second degree, ORS 163.175, and carrying a dangerous weapon with intent to use it unlawfully. ORS 166.220. 105 Or. App. 414, 804 P.2d 1231 (1991). We treat the petition as one for reconsideration, ORAP 9.15(1), allow it in the light of State v. Racicot, 106 Or. App. 557, 809 P.2d 726 (1991), and adhere to our decision.
Defendant challenges the imposition of consecutive sentences on the ground that the trial court did not make the findings required by ORS 137.122. In Racicot, we held that, before a trial court can impose consecutive sentences, ORS 137.123(4) requires it to make certain findings. ORS 137.122 required similar findings. However, because ORS 137.123 impliedly repealed ORS 137.122, we reject defendant's argument. See State v. Franske, 92 Or. App. 353, 758 P.2d 418, rev den 307 Or. 77 (1988).
ORS 137.123(4) provides:
"The court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of conduct only if the court finds:
"(a) That the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant's willingness to commit more than one criminal offense; or
"(b) The criminal offense for which a consecutive sentence is contemplated caused or created a risk of causing greater or qualitatively different loss, injury or harm to the victim or caused or created a risk of causing loss, injury, or harm to a different victim than was caused or threatened by the other offense or offenses committed during a continuous and uninterrupted course or [ sic] conduct."
Defendant's remaining arguments do not merit discussion.
Reconsideration allowed; decision adhered to.