Oregon v. Ice


Whether subjecting a defendant to consecutive sentencing for multiple convictions based on determinations made by a trial judge, and not a jury, violates the Sixth Amendment right to a jury trial, based on the U.S. Supreme Court’s rulings in Apprendi v. New Jersey and Blakely v. Washington, which prohibit trial judges from imposing greater punishment than the statutory maximum prescribed for the particular crime of which the defendant has been convicted.

Oral argument: 
October 15, 2008
Court below: 

The U.S. Supreme Court in Apprendi v. New Jersey and Blakely v. Washington determined that sentencing decisions that exceed the statutory maximum prescribed for a crime are unconstitutional and violate the Sixth Amendment right to a jury trial if they are based on additional fact finding by the trial judge, rather than the jury. Thomas Eugene Ice was convicted by a jury of six crimes, and under a state statutory scheme, was sentenced by a trial judge to serve sentences for four of the convictions consecutively, meaning one after another, rather than concurrently, in which sentences would have been served at the same time. Ice argued that because his sentence exceeded the statutory maximum for any one of his convictions, and was based on determinations made by the trial judge rather than the jury, it violated the rule established in Apprendi and Blakely and was unconstitutional. The Oregon Supreme Court agreed, and it reversed his conviction. The U.S. Supreme Court considers in this case whether its prior rulings apply to consecutive sentencing based on fact finding determinations made by a judge rather than a jury.

Questions as Framed for the Court by the Parties 

Whether the Sixth Amendment, as construed in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), is violated by the imposition of consecutive sentences based on the sentencing judge’s determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant.


Thomas Eugene Ice was the manager of an apartment complex. On two occasions, Ice entered an apartment at night and sexually touched an 11 year old girl in her bedroom. State v. Ice, 343 Ore. 248, 250 (2007). A grand jury indicted Ice on six crimes: two incidents of burglary and two acts of first-degree sexual abuse committed during each burglary, one for touching the girl’s breasts, and another for touching her vagina. Id. Ice pleaded not guilty, and was convicted on all six charges at trial by jury. Id.

Before sentencing, the State of Oregon recommended that each incidence of burglary be viewed as a separate episode, and that the sentences resulting from each should be served by Ice consecutively, meaning that the second sentence is served once the first sentence ends, rather than concurrently, where both sentences are served at the same time. Ice, 343 Ore. at 250–251. The State also recommended that within each of these episodes, the sentences for the sexual acts of touching the girl’s vagina should run consecutively to the sentences for each incidence of burglary. Id. at 251.

Before Ice’s sentencing hearing, the U.S. Supreme Court decided in Apprendi v. New Jersey, 530 U.S. 466 (2000) and reaffirmed in Blakely v. Washington, 542 U.S. 296 (2004), that any fact that could increase a sentence beyond the statutory maximum for a crime must be presented to and decided by a jury. See Ice, 343 Ore. at 251–252. At his sentencing hearing, Ice argued that whether his two convictions for burglary arose out of separate criminal incidents is a factual question for the jury. Id. at 252. The trial court rejected this argument and sentenced Ice according to the State’s recommendations. See id. The Court of Appeals affirmed the trial court’s decision without opinion. Id. at 250.

The Oregon Supreme Court ruled that the trial judge's sentencing decision was proper under Oregon law. See Ice, 343 Ore. at 256–262. However, when considering Ice’s arguments under the Sixth Amendment to the Federal Constitution, the court, in reviewing the holdings of Apprendi and Blakely, found that “the concern is with facts that increase a defendant's sentence beyond the prescribed maximum for the crime that the jury determined that the defendant committed.”Id. at 264 (emphasis in original). It reasoned that because it is assumed that a defendant convicted of multiple crimes will be sentenced concurrently, jury fact finding is required to justify consecutive sentencing. See id. at 265–266. Otherwise, consecutive sentencing “expose[s] the defendant to a greater punishment than that authorized by the jury's guilty verdict,” in opposition to the holdings of Apprendi and Blakely. Id. at 266. The court thus concluded that even if the state legislature has traditionally permitted certain factors to be decided by the trial judge, “under Apprendi, Blakely and their progeny, those facts must themselves be decided by a jury.” Id. at 264.

The U.S. Supreme Court granted certiorari to clarify whether the rule announced in Apprendi and Blakely applies narrowly to the circumstances of those cases or presents a broad bright-line rule that guarantees the Sixth Amendment right to a jury trial for all aspects of sentencing. The majority of courts have found that it applies narrowly to circumstances where a defendant is sentenced beyond the statutory maximum for a single offense on the basis of facts found by a judge, rather than a jury. Ice, 343 Ore. at 265. The Oregon Supreme Court would apply the rule to consecutive sentencing decisions made by judges that increase the amount of punishment beyond the statutory maximum, regardless of approval by the state legislature to consider other factors.


Powerful Precedents

Oregon v. Ice presents the U.S. Supreme Court with the task of interpreting the Sixth Amendment’s jury trial guarantee, which states that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” U.S. Constitution, Amendment VI. Specifically, the Court must decide whether the Sixth Amendment requires that facts, other than prior convictions, necessary to imposing consecutive sentences must be found by a jury or admitted by the defendant. In deciding this question, the Court will look to its recent landmark decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004) for guidance.

In Apprendi, the defendant pled guilty to second degree possession of a firearm for an unlawful purpose, and subsequently challenged the statutory scheme that allowed the sentencing trial court judge to impose incarceration that exceeded the statutory maximum of ten years for that crime. Apprendi, 530 U.S. at 470. The trial judge imposed an elevated twelve year prison term on the defendant based on his determination that the defendant committed the crime for racially motivated reasons. Id. at 470–71. The U.S. Supreme Court invalidated the statutory scheme, thereby creating the so-called “Apprendi Rule,” which holds that “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.” Id. at 490. In Blakely, the defendant pled guilty to second degree kidnapping, which carried with it a standard maximum prison term of fifty three months. Blakely, 542 U.S. at 298–300. The trial court, based on its own determination that the defendant had acted with deliberate cruelty, imposed a ninety month sentence that exceeded the statutory maximum for the offense. Id. at 299–300. The Supreme Court applied the rule it laid down in Apprendi and overturned the trial judge’s decision, clarifying that the prescribed statutory maximum is the maximum sentence a judge may impose based on the jury’s verdict without any additional findings made by the judge. Id. at 303–304 (emphasis in original).

Differing Interpretations of Apprendi and Blakely

The State of Oregon argues that the Sixth Amendment’s prohibition against imposing a greater prison term than the statutory maximum is offense specific. Brief for Petitioner at 14. This interpretation allows a trial judge to make a factual determination that dictates whether a defendant serves his sentences consecutively or concurrently. Id. Respondent Thomas Eugene Ice disagrees and asserts that the Sixth Amendment’s jury trial guarantee applies not only to guilt establishing elements, but also to any facts that increase the maximum punishment for an offense. Brief for Respondent at 12.

The State of Oregon supports its position by pointing out the Supreme Court approached an aggregate sentencing argument made by New Jersey as a party in Apprendi. See Brief for Petitioner at 12–13. There, the Court dismissed New Jersey’s argument that because the increased sentence that the trial judge issued still fell within the total sentence the defendant would have received had he been sentenced consecutively, the sentence was constitutional. See Apprendi, 530 U.S. at 474. Instead, it found that whether the sentence imposed violated the Sixth Amendment depended only on its length in light of the maximum for that particular count. See Id. Oregon argues that this indicates that the Supreme Court’s holding in Apprendi does not address judicial determinations of fact regarding the imposition of consecutive sentences. See Brief for Petitioner at 12.

Ice challenges Oregon’s argument, pointing to the rationale behind the jury trial right established by Apprendi and its predecessors. He begins by examining the Supreme Court’s holding in Jones v. United States, 526 U.S. 227 (1999). Brief for Respondent at 12. Jones addressed whether facts identified in a federal carjacking statute, which increased the maximum punishment if the offense resulted in serious bodily injury or death, were elements that needed to be found by a judge or a jury for sentencing purposes. Jones,526 U.S. at 229–32. The Jones court held that the facts were elements requiring a jury determination, thereby avoiding the potential violation in the present case. Brief for Respondent at 12. Furthermore, the Jones Court stated the principal that “any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Jones, 526 U.S.at 243 n.6; See also Brief for Respondent at 13.

Ice uses this language to argue that Apprendi supports the “Jones principal,” based upon the Supreme Court’s examination of the history of the jury trial guarantee. See Brief for Respondent at 13–14. Ice points to language in Apprendi which indicates that the Framers of the Constitution intended the jury trial guarantee to require the prosecution to prove to the jury, beyond a reasonable doubt, the elements of the crime that established guilt and determined the maximum punishment. See Id. at 14. Ice argues that the Framers wanted the jury trial guarantee to “operate as a… ‘bulwark’ between the accused and both the prosecuting official and the judicial sanctioner.” Id. at 15. Ice sees this bulwark as binding directly the judge’s authority to punish to the jury’s verdict. Id. at 16.

Ice finally argues that sentencing that increases punishment based upon judicial determinations of fact “denies a defendant the basic protection [of the jury trial guarantee] the Framers intended.” Brief for Respondent at 16. Ice argues that consecutive sentences impose greater punishment than concurrent sentences, pointing to guiding language in Apprendi that states “the relevant inquiry is one not of form but of effect—does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” Apprendi, 530 U.S. at 494. Ice argues that a consecutive sentence indeed imposes a greater punishment because it keeps the defendant incarcerated for a longer period of time than a concurrent sentence would. See Brief for Respondent at 40–42.

Historic Role of Jury

Oregon utilizes historical arguments that highlight the trial court’s traditional role in imposing consecutive sentences for multiple convictions and stress the jury’s lack of involvement in these decisions to argue that there is no foundation for requiring a jury determination to impose consecutive sentences. See Brief for Petitioner at 29–51. Oregon points to numerous Supreme Court decisions that emphasize the jury’s function in determining the defendant’s guilt or innocence, but say nothing about the jury’s role in imposing consecutive sentences. Id. at 33.

Oregon buttresses this argument by pointing to English and early American cases, where the trial judge had authority to impose consecutive sentences and the jury played no role in the decision. Brief for Petitioner at 34, 42. Oregon points to Lee v. Walker, an English case, where the court concluded that “the High Court has always had inherent jurisdiction to impose consecutive sentences of imprisonment in any appropriate case where the court had the power to imprison.” Id. at 39 (quoting Lee v. Walker. Q.B. 1191 (1985). Turning to American cases, Oregon cites early decisions in the Supreme Courts of Virginia, Connecticut, Pennsylvania, and Massachusetts where trial judges used their discretion to impose consecutive sentences. Id. at 42.

Oregon finally argues that even within the small group of states that did not believe a trial judge had the inherent authority to impose consecutive sentences, “the issue was not whether the jury had a role to play in the decision.” Brief for Petitioner at 48. On the contrary, the debate focused on whether or not the legislature had to set up statutory requirements to guide the trial court in imposing consecutive sentences. Id. Oregon thus argues that history “suggests no basis for concluding that the jury played a role in the decision to impose consecutive sentences for multiple convictions.” Id. at 50.

Ice contends that Oregon misapprehends the “Apprendi Rule” by relying on history and ignoring Apprendi’s functional emphasis. See Brief for Respondent at 28. Simply put, according to Ice, if a judge imposes a sentence greater than that statutorily prescribed for the jury’s verdict, the Sixth Amendment is violated, including when consecutive sentencing is ordered based on judicial determinations made after the jury verdict. Id. at 19–20.

Petty Offenses v. Serious Offenses

Oregon argues that an offense specific construction of the jury trial guarantee is consistent with the U.S. Supreme Court’s rulings concerning petty offenses. See Brief for Petitioner at 53. To begin, the jury-trial guarantee does not extend to petty offenses. Lewis v. United States, 518 U.S. 322, 323–324 (1996). An offense is considered petty when its maximum prison term is less than six months. Id. at 326. The Supreme Court has further held that the jury trial guarantee’s scope “does not change where a defendant faces a potential aggregate prison term in excess of six months for petty offenses charged.” Id. at 323–24. Based on these rules and holdings, Oregon reasons that if the “aggregate maximum punishment is immaterial for determining whether the Sixth Amendment right to a jury trial attaches at the front of a case, it should also be immaterial at sentencing.” Brief for Petitioner at 54.

Ice does not contend that the jury-trial guarantee should extend to petty offenses that aggregate time on par with serious offenses. See Brief for Respondent at 38–39. Rather, he counters that Oregon is reading too much into the Supreme Court’s holding. See Id. at 39. He argues that the jury trial guarantee applies to serious offenses and that in this case it is undisputed that serious offenses are at issue. See Id.


Apprendi states that “the relevant inquiry is one not of form, but of effect—does the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict.” 530 U.S. at 494. The Oregon Supreme Court interprets this as a focus on whether “the quantum of punishment” imposed on the defendant has been raised beyond the jury’s verdict. Ice, 343 Ore. at 265. Taken quite literally, there are many sentencing determinations that could be touched by a broad application of the rule. On the other hand, it is not clear that many state laws would have to be changed to accommodate the rule’s expansion.

The former view is taken by a group of 17 states, which argue that a broad application of Apprendi would impose difficulties and constraints on several state policies established “in the interests of sentencing reform and fiscal responsibility.” Brief of Indiana, et al., as Amici Curiae in Support of Petitioner at 11. Examples of such alternative means of sentencing that could be affected include “community corrections . . . work release . . . and home detention programs.” Id. Decisions to impose these alternative sentencing schemes in lieu of traditional incarceration are traditionally left to the consideration of the sentencing judge, not the jury. See id. In addition, the States argue that other judicial sentencing decisions that could come into question if the Oregon Supreme Court’s decision is affirmed include orders to pay fines and fees or restitution, as these too are decisions traditionally determined by the sentencing judge and not the jury. See id. at 12. Furthermore, they point out that because many “states allow courts to suspend all or part of a sentence and impose probation,” and thus allow judges to go beyond the jury’s verdict in making a sentencing decision, the legality of this practice too would be called into question by an extension of Apprendi. Id. at 11.

In response, The National Association of Criminal Defense Lawyers (“NACDL”) argues that expanding the rule in Apprendi would only affect a handful of states, and in fact would leave the laws and practices of forty-seven states largely undisturbed. See Brief of The National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Respondent at 8–12. In the vast majority of states, judges are already vested by statute with the power to determine whether to issue a concurrent or consecutive sentence. Id. This means that by convicting a defendant of every element of a crime, the jury’s verdict alone is what authorizes the possibility of consecutive sentencing. Id. at 12. This would also be true in states where consecutive sentencing is made mandatory for certain offenses by statute. See id. In that case, it is again the jury’s conviction on all elements of the crime that imposes a consecutive sentence on a defendant. The NACDL further notes that only three states—Maine, Tennessee and Oregon—feature sentencing statutes that allow for consecutive sentencing to be based on “judicial fact finding beyond the jury verdict.” Id. at 12. It is this extra judicial fact finding that clearly violates the rule established in Apprendi, according to the NACDL, because of the imposition of a sentence that could exceed “the statutory maximum penalty for any individual offense of which the defendant was convicted.” Id. at 15.

However, other practical difficulties could be created for “the courts, prosecutors, and defense attorneys charged with executing” the rule in Apprendi as applied to consecutive sentencing determinations. Brief of Indiana, et al. at 14. For example, it is argued that state prosecutors would have great difficulty in compiling “all facts potentially relevant to possible consecutive sentences;” it might even be impossible. Id. Furthermore, because admitting facts bearing on prior criminal history or bad acts would be “highly prejudicial if admitted during the guilt phase of a trial,” states may be forced to resort to “bifurcated or even trifurcated trials on sentencing facts,” creating great inefficiency and expense. Id.at 15. The States predict that even statutorily defined mandatory minimum sentences could be called into question, as the “quantum of punishment” the defendant would be exposed to would be raised under the Oregon Supreme Court’s interpretation of the rule in Apprendi. Id. at 13.

The National Association of Criminal Defense Lawyers argues that it would be relatively easy for the few states whose laws do not currently comply with the proposed extension of Apprendi to correct their statutory defect. See Brief of NACDL at 15–17. Oregon would have several options in amending its statute. One option would be to make its sentencing regime purely advisory. Id. at 7. This would allow for the “judicial discretion practiced historically in this area of the law.” Id. Another option would be to require all such aggravating factors for imposing consecutive sentencing be tried to and found by a jury. Id. A final possibility would be for the State to require all sentences for certain crimes to be (or never to be) served consecutively, thus taking the discretion away from the trial judge. Id. All of these possible remedies, it is argued, would correct a Sixth Amendment violation with little additional time or expense. See Id.


The decision in this case will determine the scope of the Supreme Court’s ruling in Apprendi v. New Jersey: that a defendant should not be exposed to a greater punishment than that authorized by the jury's guilty verdict. The question to be considered here is whether consecutive sentencing that exceeds the statutory maximum prescribed for a single crime is unconstitutional and violates the Sixth Amendment right to a jury trial, if the decision is based on additional fact finding made by the trial judge, rather than the jury. The State of Oregon argues that the jury trial guarantee is offense specific, while Ice reads Apprendi’s rule quite literally and argues that the Sixth Amendment’s guarantee applies to any factual determination that imposes a greater quantum of punishment on the defendant. A decision reflecting this view could call into question the ability of trial judges to impose alternative sentencing schemes without first allowing the jury to consider the decision. However, it appears that only a handful of states have laws that would need to be changed to conform to such an expansion of the rule. Either way, the Supreme Court’s decision in this case will clarify some of the remaining ambiguity in the proper interpretation of the Sixth Amendment’s jury trial guarantee.

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