dissenting.
Does Oregon’s particular — indeed, somewhat peculiar — statutory scheme for imposition of consecutive sentences for crimes arising from a “continuous and uninterrupted course of conduct,” ORS 137.123(4) and (5), require judicial factfinding that violates the constitutional principles announced in Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000), and Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004)?1
That question, although stark, is hardly easy. Almost nothing touching on Apprendi and Blakely and their implications is. We, like other state courts over the past five years, have been placed in a posture of “shadowboxing” — of divining what the Court meant and anticipating where it is going. To be sure, that dynamic is not unusual in the wake of the Court’s most significant constitutional decisions, but it is especially acute here. Nevertheless, I must conclude that the core constitutional principles underlying Apprendi and Blakely preclude the imposition of consecutive sentences pursuant to ORS 137.123(4) and (5). Accordingly, I respectfully dissent.
My conclusion is compelled by the coincidence and convergence of two factors. First, although both Apprendi and Blakely arose as challenges to the enhancement of a sentence for a single offense, their holdings were not dependent on that circumstance. Rather, the Court’s holding in each case rested on its unqualified condemnation of enhancement of a defendant’s “punishment” based on facts other than those found by a jury:
*89“[A]ny fact [other than prior conviction] that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
Apprendi, 530 US at 490 (emphasis added).
“[T]he relevant inquiry is not one 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?”
Id. at 494 (emphasis added).
“Our precedents make clear * * * that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment,’ and the judge exceeds his proper authority.”
Blakely, 542 US at 303-04 (citations omitted; first emphasis in original; second emphasis added). See also United States v. Booker, 543 US 220, 125 S Ct 738, 160 L Ed 2d 621 (2005) (federal sentencing guidelines, which required judicial fact-finding to support imposition of greater sentences, violated Sixth Amendment); Ring v. Arizona, 536 US 584, 122 S Ct 2428, 153 L Ed 2d 556 (2002) (death penalty sentencing scheme that required judicial factfinding of aggravating circumstances violated Sixth Amendment); Harris v. United States, 536 US 545, 122 S Ct 2406, 153 L Ed 2d 524 (2002) (rule from Apprendi not implicated by the imposition of mandatory minimum sentences).
Second, under ORS 137.123, sentences for multiple crimes arising from a single “continuous and uninterrupted course of conduct” are presumed to be concurrent unless the court affirmatively “finds” certain facts. See ORS 137.123(1), *90(4) , (5).2 That is, Oregon’s consecutive sentencing statute, unlike the sentencing statutes in many other states, embodies a “concurrency default” for sentencing of multiple offenses arising out of a continuous and uninterrupted course of conduct. See State v. Nail, 304 Or 359, 366, 745 P2d 415 (1987) (interpreting prior similar statute and concluding that the statute “makes concurrent sentences the norm and consecutive sentences the exception. It permits consecutive sentences only if the court makes [specific] findings [.]”).
The bottom line is that, under ORS 137.123(4) and (5) , judicial factfinding is necessary to transform one or more statutorily presumed concurrent sentences into consecutive sentences. As a practical matter, such judicial factfinding can increase a defendant’s actual incarceration, his punishment, for years. Indeed, here, defendant will spend 30 more years in prison because of the trial court’s sentencing-related fact-finding.
That result cannot be reconciled with Apprendi’s and Blakely’s core principles: Given the “concurrency default” of *91ORS 137.123(4), the maximum aggregate sentence that the court could have “impose [d] solely on the basis of the facts reflected in the jury’s verdict,” Blakely, 542 US at 303, was the amount that could be imposed without additional judicial findings required under ORS 137.123(5). Consequently, the court’s findings pursuant to ORS 137.123(5) “expose[d] the defendant to a greater punishment than that authorized by the jury’s guilty verdict.” Apprendi, 530 US at 494.
The essential dispute, on which I differ with the majority, pertains to the proper meaning of “prescribed statutory maximum” as used in Apprendi and amplified in Blakely. In the state’s (and the majority’s) view, “prescribed statutory maximum” refers only to the sentence imposed on any individual count viewed in isolation — and not to the defendant’s aggregate sentence. In defendant’s view, the constitutional inquiry is concerned with both. Although the question may be close in the abstract, given the “concurrency default” feature of ORS 137.123,1 agree with defendant.
I reject at the outset the state’s suggestion that any extension of the reasoning of Apprendi and Blakely to the imposition of consecutive sentences is foreclosed because the circumstances addressed in those cases were, in the state’s words, “offense-specific.” Certainly, the particular circumstances in Apprendi and Blakely were “offense-specific.” But, respectfully, “So what?” Neither opinion in its reasoning or holding, nor any subsequent opinion of the Court, expressly imposes such a limitation. The question of constitutional constraints, if any, on the sentencing court’s imposition of consecutive sentences simply was not at issue in those cases.3 *92Consequently, I must determine whether, or to what extent, the reasoning that lies at the core of those decisions applies in this context. That is the nature of the judicial process.
The state argues, nevertheless, that the relevant “statutory maximum” for purposes of the Sixth Amendment in situations concerning multiple crimes arising from a continuous and uninterrupted course of conduct is not the maximum sentence that may be imposed pursuant to ORS 137.123 without judicial factfinding. Rather, the state contends that the “statutory maximum” for constitutional purposes must be assessed on an offense-by-offense basis — and, so long as each of those sentences rests on facts found by the jury, the Sixth Amendment is unconcerned with how much time a defendant will actually spend in prison for the totality of those crimes.
I readily acknowledge that the state’s approach— which the majority adopts — is not without intuitive appeal. Nevertheless, I cannot reconcile its result with the principles expressed in Apprendi and amplified in. Blakely. Again, those decisions preclude judicial factfinding that, as a practical and functional matter, increases a criminal defendant’s “punishment.” See Blakely, 542 US at 303; Apprendi, 530 US at 494 (emphasis added). Again, that is what occurred here by virtue of the sentencing judge’s findings pursuant to ORS 137.123(5).4
*93I fully appreciate that the result I urge differs not just from the majority but also from the holdings of most other state appellate courts that have addressed the same issue. Compare People v. Wagener, 196 Ill 2d 269, 752 NE 2d 430, cert den, 534 US 1011 (2001); State v. Smylie, 823 NE 2d 679 (Ind), cert den, _ US _, 126 S Ct 545 (2005); People v. Black, 35 Cal 4th 1238, 29 Cal Rptr 3d 740, 113 P3d 534, cert pending (2005); and State v. Cubias, 155 Wash 2d 549, 120 P3d 929 (2005), with In re VanDelft, 158 Wash 2d 731, 147 P3d 573 (2006), State v. Foster, 109 Oh St 3d 1, 845 NE 2d 470, cert den, _ US _, 127 S Ct 442 (2006), and Cubias, 155 Wash 2d at 557-58, 120 P3d at 933 (Madsen, J., concurring). Nevertheless, for the reasons that follow, I am unpersuaded by the reasoning of most of those courts.
I begin with Wagener, which antedated Blakely. There, the Illinois Supreme Court considered the constitutionality of a statute that allowed a court to impose a consecutive sentence after the court had found that such a sentence was “ ‘required to protect the public.’ ” 196 Ill 2d at 280, 752 NE2d at 438 (quoting 730 ILCS 5/5-8-4(b)). The court first noted that “Apprendi explicitly disclaimed any holding regarding consecutive sentencing,” 196 Ill 2d at 284, 752 NE2d at 441, pointing to the Court’s framing of the issue as “ ‘whether the 12-year sentence imposed on count 18 was permissible,’ ” id. (quoting Apprendi, 530 US at 474), and the Court’s rejection of the state’s invitation to consider the constitutionality of the sentences in the aggregate. The Illinois *94court then declined to apply Apprendi to factfinding in support of consecutive sentencing, concluding:
“We are bound to follow the United States Supreme Court’s interpretation of the Constitution of the United States. * * * But we are not bound to extend the decisions of the Court to arenas which it did not purport to address, which indeed it specifically disavowed addressing, in order to find unconstitutional a law of this state.”
196 Ill 2d at 287, 752 NE2d at 443-44 (some citations omitted).
With respect, the Illinois court’s premise that the Court in Apprendi “specifically disavowed addressing” consecutive sentencing is erroneous. Rather, as noted, see 210 Or App at 92-93 n 4 (Haselton, J., dissenting), the Court rejected New Jersey’s invitation to treat any error in the defendant’s sentence as harmless based on the notion that “even without the trial judge’s finding of racial bias, the judge could have imposed consecutive sentences on [other counts] that would have produced the 12-year term of imprisonment that Apprendi received.” Apprendi, 530 US at 474 (emphasis added). The Court explained that the constitutional question before it was whether the sentence imposed on a specific count was permissible. Id. Thus, far from implicitly foreclosing the application of its analysis to factfinding necessary for the imposition of consecutive sentences (as the Illinois court believed), the Court in Apprendi had no occasion to address that question.
Perhaps more fundamentally, the Illinois court’s holding in Wagener was the product of judicial caution, of hesitation to extend the recently decided Apprendi beyond its particular circumstances pending further development and instruction. Blakely, however, afforded that guidance, amplifying Apprendi. Given that guidance, I perceive no persuasive principled limitation on the application of Apprendi’s and Blakely’s reasoning to judicial factfinding necessary for the imposition of consecutive, rather than presumptively concurrent, sentences.
In Smylie, the Indiana Supreme Court reached a result similar to that in Wagener, albeit for somewhat different reasons. There, the court noted that, when sentencing “on *95multiple counts, an Indiana trial judge may impose a consecutive sentence if he or she finds at least one aggravating factor” and that the finding of an aggravating factor is “a requirement before a consecutive sentence may be imposed.” 823 NE2d at 686. Nevertheless, the court concluded that
“our statutes do not erect any target or presumption concerning concurrent or consecutive sentences. Where the criminal law leaves sentencing to the unguided discretion of the judge there is no ‘judicial impingement upon the traditional role of the jury.’ ”
Id. (quoting Blakely, 542 US at 309).
Again, with respect, I do not understand that reasoning. In particular, I do not understand how, if a sentencing scheme requires a court to make findings of aggravating circumstances before the court can impose a consecutive sentence, the court is exercising the sort of unlimited discretion that the Court indicated in Blakely would be permissible. 542 US at 308-09. That is, the exercise of “discretion” is hardly unlimited — it is conditioned upon predicate judicial factfind-ing — and, but for those findings, the defendant would receive a concurrent sentence. Accord Blakely, 542 US at 305 (“Whether the judge’s authority to impose an enhanced sentence depends on finding a specified fact (as in. Apprendi), one of several specified facts (as in Ring), or any aggravating fact (as here), it remains the case that the jury’s verdict alone does not authorize the sentence.” (Emphasis in original.)).5
In Cubias, a closely divided decision, the Washington Supreme Court addressed the application oí Apprendi and Blakely to Washington’s consecutive sentencing scheme, see Revised Code of Washington (RCW) 9.94A.589(1), which, like *96Oregon’s, provides that “sentences for concurrent offenses are presumed to run concurrently with limited exceptions” and to “impose a consecutive sentence, the court must make additional findings of fact.” 155 Wash 2d at 557, 120 P3d at 933 (Madsen, J., concurring). The court’s majority viewed the issue in essentially the same manner as did the Illinois court in Wagener: “Apprendi does not have any application to consecutive sentences; to conclude otherwise would extend Apprendi’s holding beyond the narrow grounds upon which it rested.” Cubias, 155 Wash 2d at 553, 120 P3d at 931. However, the concurring judges in Cubias pointed out — and I agree — that Apprendi was not so circumstantially circumscribed. Thus, in the concurring judges’ view:
“There can be little doubt that imposing consecutive sentences dramatically increases the presumptive quantum of punishment the legislature authorized the trial court to impose, absent exceptional circumstances. For Sixth Amendment purposes, there is no difference between an exceptional sentence that increases the length of a sentence for one count beyond the range, and an exceptional consecutive sentence that increases the presumptive length of incarceration. Both serve to keep a prisoner incarcerated longer than would be the case if the presumptive sentences were imposed. In both cases, the overall length of imprisonment has increased, and in both cases, a judge made additional findings of fact in order to sentence beyond the presumptive period of incarceration authorized by the legislature.
«íH ‡ Hí ‡
“There is no principled basis to distinguish between exceptional individual sentences and exceptional consecutive sentences; in each case the decision to depart from the presumptive sentence is based on a factual determination made by a judge.”
155 Wash 2d at 558-59, 561, 120 P3d at 934-35 (Madsen, J., concurring) (internal quotation marks omitted; emphasis in original).6
*97More recently, in Foster, the Ohio Supreme Court unanimously held that that state’s consecutive sentencing provisions that required judicial factfinding ran afoul of the Sixth Amendment principle announced in Apprendi. The court concluded:
“R.C. 2929.41(A) states, ‘Except as provided in [specific sections including R.C. 2929.14(E)], a prison term, jail term, or sentence of imprisonment shall be served concurrently with any other prison term.’ Thus, except for certain enumerated statutes imposing nondiscretionary consecutive terms, judicial fact-finding must occur before consecutive sentences may be imposed under R.C. 2929.14(E)(4). We have held previously that R.C. 2929.14(E)(4) * * *require[s] trial courts that impose consecutive sentences to make the statutorily enumerated findings and to give reasons at the sentencing hearing to support those findings for review on appeal.
“Thus, with limited exceptions, the Ohio Revised Code provides that consecutive sentences in Ohio may not be imposed except after additional fact-finding by the judge. In State v. Lett, 161 Ohio App 3d 274, 829 NE 2d 1281 [2005], an en banc decision, the Eighth Appellate District held that Blakely is inapplicable to consecutive sentencing because ‘the facts found by the court do not increase the maximum penalty for an individual offense.’ This is true; nevertheless, because the total punishment increases through consecutive sentences only after judicial findings beyond those determined by a jury or stipulated by a defendant, R.C. 2929.14(E)(4) violates principles announced in Blakely.”
109 Oh St 3d at 21-22, 845 NE2d at 490-91 (citations, footnotes, and emphasis omitted).
Finally, and most recently, in VanDelft, the Washington Supreme Court revisited Blakely’s proper application to that state’s consecutive sentencing scheme. Although in Cubias, the closely divided court had determined that Blakely did not preclude the imposition of consecutive sentences pursuant to RCW 9.94A.589(1)(b),7 in VanDelft, *98the court unanimously held that the imposition of a consecutive sentence pursuant to RCW 9.94A.589(1)(a) did violate Blakely. RCW 9.94A.589(1)(a) provides, in pertinent part, as follows:
“Sentences imposed under this subsection shall be served concurrently. Consecutive sentences may only be imposed under the exceptional sentence provisions of RCW 9.94A.535.”8
The court concluded:
“[T]he facts found by the trial judge in this case went beyond the jury verdict and changed the nature of the sentence that the defendant was entitled to expect for count 1 from concurrent to consecutive. The trial judge’s findings operated to elevate the punishment for a nonserious violent offense to the realm of punishment for serious violent offenses based on facts not reflected in the jury’s verdict. See Blakely, 542 U.S. at 303; Apprendi, 530 U.S. at 494 * * *.
“More importantly, there is no dispute that the legislature has characterized consecutive sentences imposed under (1)(a) as exceptional, requiring a finding of an aggravating factor for support. RCW 9.94A.535. In fact, in order to overcome the presumption of concurrent sentencing in (1)(a), the sentencing judge in this case employed the very exceptional sentencing scheme at issue in Blakely.”
VanDelft, 158 Wash 2d at 742, 147 P3d at 579.
In sum, appellate courts from other jurisdictions with similar consecutive sentencing laws are divided on the question presented here. It is, frankly, tempting to do as the *99majority has done and decline to apply Apprendi and Blakely to imposition of consecutive sentences pending further instruction — or compulsion. And yet, unlike the court in Wagener and the majority in Cubias, I cannot agree that the reasoning and holdings in Apprendi and Blakely are preclu-sively “offense-specific.” And like the courts in VanDelft and Foster and the concurrence in Cubias, given my understanding of the core principles that informed Apprendi and Blakely, I see no principled basis for dechning to apply those principles to the imposition of consecutive sentences pursuant to ORS 137.123(5).
In sum, I would conclude that the imposition of consecutive sentences based on judicial findings of fact pursuant to ORS 137.123(5) violates the Sixth Amendment to the United States Constitution. Consequently, the case should be remanded for resentencing.
I respectfully dissent.
Schuman, Ortega, and Rosenblum, JJ., join in this dissent.It is not disputed in this case that the convictions concern a “continuous and uninterrupted course of conduct” and thus ORS 137.123(4) and (5) are the applicable subsections.
ORS 137.123(1) provides, in pertinent part:
“The court may provide for consecutive sentences only in accordance with the provisions of this section. A sentence shall be deemed to be a concurrent term unless the judgment expressly provides for consecutive sentences.”
ORS 137.123(4) provides:
“When a defendant has been found guilty of more than one criminal offense arising out of a continuous and uninterrupted course of conduct, the sentences imposed for each resulting conviction shall be concurrent unless the court complies with the procedures set forth in subsection (5) of this section.”
(Emphasis added.)
Finally, ORS 137.123(5) 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 of conduct.”
(Emphasis added.)
In. Apprendi, the state attempted to make the obverse of the argument here, viz., that the enhanced sentence that the court imposed on one count was not unconstitutional because that sentence did not exceed the total sentence that the court could have imposed if it had elected to impose consecutive, rather than concurrent, sentences. There, the defendant was convicted of, inter alia, two counts of unlawful possession of a firearm; the statutory maximum sentence for that crime was 10 years, and the court, upon finding that the defendant had acted from a racially biased motive, imposed a 12-year sentence on one count but imposed a concurrent sentence on the other count. The state reasoned that, because the court could have imposed consecutive 10-year sentences on the two counts, the 12-year sentence was within the 20-year total “statutory maximum” sentence. The Court rejected that argument:
“The constitutional question, however, is whether the 12-year sentence imposed on count 18 was permissible, given that it was above the 10-year maximum for the offense charged in that count. * * * The [consecutive sentence *92has] no more relevance to our disposition than the dismissal of the remaining 18 counts.”
530 US at 474.
The state contends that Lewis v. United States, 518 US 322, 116 S Ct 2163, 135 L Ed 2d 590 (1996), supports the proposition that the Sixth Amendment does not apply to aggregated sentences, but only to individual sentences. In Lewis, the Court addressed the question whether the right to a jury trial under the Sixth Amendment attached when a defendant was charged with multiple “petty offenses,” each punishable by no more than six months’ imprisonment. The Court noted that an “offense carrying a maximum prison term of six months or less is presumed petty,” and, unless the legislature has provided additional severe statutory penalties, a defendant will not be entitled to a jury trial under the Sixth Amendment. Id. at 326. The Court rejected the defendant’s argument that his entitlement to a jury trial should be determined based on the aggregation of possible sentences for multiple charges of petty offenses:
“[W]e determine whether an offense is serious by looking to the judgment of the legislature, primarily as expressed in the maximum authorized term of imprisonment. Here, by setting the maximum authorized prison term at six months, the Legislature categorized the offense of obstructing the mail as *93petty. The fact that petitioner was charged with two counts of a petty offense does not revise the legislative judgment as to the gravity of that particular offense, nor does it transform the petty offense into a serious one, to which the jury trial right would apply.”
Id. at 327. The Court further noted that, if it were to accept the defendant’s approach, “the Government could properly circumvent the jury trial right by charging the counts in separate informations and trying them separately.” Id. at 330.
Lewis is inapposite. It concerned whether a defendant was entitled to a jury at all. Here, there is no dispute that the crimes are not “petty” and that defendant had a right to a jury trial; rather, the question is whether, given defendant’s entitlement to a jury trial, the determination of certain facts was properly committed to the jury and not the court. Further, as Apprendi and Blakely make clear, the touchstone of the inquiry here is not, as in Lewis, one of legislative judgment. Thus, Lewis, which antedated Apprendi and Blakely, sheds no light on the Court’s view of judicial factfinding in support of consecutive sentences.
Black appears to be similarly flawed. Under California law, like Oregon law, when sentencing on multiple convictions, if the court “fails to direct how the terms are to run, they must run concurrently.” 35 Cal 4th at 1261-62, 29 Cal Rptr 3d at 756, 113 P3d at 548 (emphasis added). If a judge desires the sentences to be served consecutively rather than concurrently, “he or she must state on the record the primary factor or factors that support the exercise of discretion.” Id. (internal quotation marks and citations omitted). In Black, the court concluded that a jury’s finding of guilt on multiple offenses “authorizes the statutory maximum sentence for each offense,” and that a judge’s determination of whether those sentences are to be served concurrently or consecutively does not “usurp!] the jury’s historical role.” Id. at 1263, 29 Cal Rptr 3d at 757, 113 P3d at 549.
Those judges concurred in the result in that case because they concluded that the jury did, in fact, make the requisite findings to support imposition of a consecutive sentence. 155 Wash 2d at 562, 120 P3d at 933 (Madsen, J., concurring).
RCW 9.94A.589(1)(b) provides:
‘Whenever a person is convicted of two or more serious violent offenses arising from separate and distinct criminal conduct, the standard sentence range for the offense with the highest seriousness level under RCW 9.94A.515 *98shall be determined using the offender’s prior convictions and other current convictions that are not serious violent offenses in the offender score and the standard sentence range for other serious violent offenses shall be determined by using an offender score of zero. The standard sentence range for any offenses that are not serious violent offenses shall be determined according to (a) of this subsection. All sentences imposed under (b) of this subsection shall be served consecutively to each other and concurrently with sentences imposed under (a) of this subsection.”
The court explained that the difference in operation between subsections (1)(a) and (1)(b) is that the former applies to sentencing of “[f]elonies that are not serious violent offenses,” VanDelft, 158 Wash 2d at 738, 147 P3d at 577, and the latter, by its terms, pertains solely to “serious violent offenses arising from separate and distinct criminal conduct.”