State v. Ulery

                                        500

On petition for review filed October 10, 2019, considered and under advisement
 May 21;* petition for review allowed, decision of Court of Appeals reversed,
  judgment of circuit court reversed, and case remanded to circuit court for
                        further proceedings June 4, 2020


                   STATE OF OREGON,
                   Respondent on Review,
                              v.
                  ADRIAN JAMES ULERY,
                    Petitioner on Review.
          (CC 17CR79026) (CA A166945) (SC S067084)
                                   

    Defendant was convicted of two crimes based on nonunanimous guilty ver-
dicts. On appeal, he raised an unpreserved Sixth Amendment challenge to those
convictions. The Court of Appeals affirmed without opinion. After the United
States Supreme Court’s decision in Ramos v. Louisiana, 

, 

, 

 (2020), the state conceded that defendant’s challenge to his
convictions qualified for plain error review. Held: (1) As the state conceded, defen-
dant’s Sixth Amendment challenge to his convictions qualified for plain error
review; (2) the court would exercise its discretion to review the error; (3) the error
in receiving nonunanimous verdicts required reversal of defendant’s convictions.
    The petition for review is allowed. The decision of the Court of Appeals is
reversed. The judgment of the circuit court is reversed, and the case is remanded
to the circuit court for further proceedings.



    En Banc
   Kali Montague, Deputy Public Defender, Salem, filed the
petition for petitioner on review. Also on the petition was
Ernest G. Lannet, Chief Defender.
    No appearance contra.
    PER CURIAM
   The petition for review is allowed. The decision of the
Court of Appeals is reversed. The judgment of the circuit
court is reversed, and the case is remanded to the circuit
court for further proceedings.


______________
   * Appeal from Polk County Circuit Court, Monte S. Campbell, Judge. 

, 

 (2019).
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 (2020)                                 501

        PER CURIAM

         In 1934, Article I, section 11, of the Oregon
Constitution was amended to permit “ten members of the
jury” to “render a verdict of guilty or not guilty, save and
except a verdict of guilty of first degree murder.” Since then,
Oregon courts have routinely received guilty verdicts by a
vote of 10 to two or 11 to one. The United States Supreme
Court upheld that outlier practice in Apodaca v. Oregon, 

, 

, 

 (1972), but defendants
have continued to object, arguing that Apodaca was infirm.
In Ramos v. Louisiana, 

, 

, 

 (2020), the United States Supreme Court agreed,
overruling Apodaca; concluding that the jury trial guarantee
of the Sixth Amendment to the United States Constitution
includes “a right to a unanimous verdict,” 

 at ___, 

; and holding that that right is incorporated into
and made applicable to the states through the Due Process
Clause of the Fourteenth Amendment, 

 at ___, 

. Ramos leaves no doubt that our state’s acceptance of
nonunanimous guilty verdicts must change and that the con-
victions in many such cases now on appeal must be reversed.
This case presents the question of whether a defendant is
entitled to reversal even where the challenge to a nonunan-
imous verdict was not preserved in the trial court and was
raised for the first time on appeal—that is, whether such a
challenge may be raised as a “plain error” that an appellate
court should exercise its discretion to correct. We conclude
that the answer is yes.

         Defendant was charged with two counts of first-
degree sexual abuse, and he exercised his right to trial by
jury. He did not object to the jury being instructed that
it could return a nonunanimous guilty verdict; his list of
requested jury instructions included the uniform criminal
jury instruction for a verdict in a felony case, an instruction
that—consistent with Oregon law—informed the jury that
10 votes to convict, from a jury of 12, were sufficient for a
guilty verdict. The jury convicted defendant of both counts.
At defendant’s request, the jury was polled, revealing that
502                                             State v. Ulery

both verdicts were nonunanimous. The trial court, without
objection from defendant, received the verdicts.
         Defendant appealed, assigning error to the jury
having been instructed that it could return a nonunani-
mous verdict and to the receipt of nonunanimous verdicts.
Defendant acknowledged that he had not preserved the issue
in the trial court, but he requested plain error review. The
Court of Appeals—before Ramos was decided—affirmed
without opinion. State v. Ulery, 

, 

 (2019).
         After Ramos issued, the state, through a letter to the
court and a notice filed in this case, conceded that, because
defendant’s convictions were based on nonunanimous ver-
dicts, they could not be sustained in light of the Supreme
Court’s holding in Ramos. The state also conceded that the
issue would qualify as plain error under ORAP 5.45(1) and
advised this court that, if we were to exercise our discretion
to correct the unpreserved error, we should reverse defen-
dant’s convictions and remand for a new trial. For the rea-
sons that follow, we accept the state’s concession, exercise
our discretion to review the error, and reverse defendant’s
convictions.
         As an initial matter, we consider whether the fact
that defendant requested the uniform instruction informing
the jury that it could return a nonunanimous guilty verdict
makes any error invited. See State v. Harris, 

, 67,

 (2017) (“As this court has long held, invited
error is no basis for reversal.”). Although the doctrine of
invited error can apply when a party requests an instruction
and later assigns error to that very instruction, we decline
to apply it under these circumstances. Defendant sought a
standard instruction that correctly expressed Oregon law
at the time of his trial. Defendant’s request for the jury
instruction was not the source of the error, nor did it make
the error more likely. Even if defendant had not requested
the instruction, Oregon law required that instruction and
also required the trial court to receive any jury verdict sup-
ported by 10 votes. For that reason, it cannot be said that
“defendant was actively instrumental in bringing [the error]
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 (2020)                                       503

about.” Anderson v. Oregon Railroad Co., 

, 

 (1904).
          When a party has failed to preserve an assignment
of error, we consider that error only if it is plain. ORAP
5.45(1). “For an error to be plain error, it must be an error
of law, obvious and not reasonably in dispute, and apparent
on the record without requiring the court to choose among
competing inferences.” State v. Vanornum, 

,

 (2013). The state concedes that those conditions
are met here, and, for the following reasons, we accept that
concession. The error in receiving the jury’s nonunanimous
guilty verdicts was an error of law and, after Ramos, an
obvious one. Whether an error occurred is generally deter-
mined by the law at the time of the appellate decision, and
nothing in our cases or the text of ORAP 5.45(1) indicates
that plain error review incorporates its own nonretroactiv-
ity rule. See State v. Zavala, 

, 380 n 1, 

 (2017) (“When used to describe a trial court’s ruling
that was not erroneous under existing law, the term ‘plain
error’ is a misnomer; it does not imply any mistake by a trial
court. Instead, it is a label that an appellate court uses when
it decides that a party is entitled to a benefit of a change in
the law.”); Griffith v. Kentucky, 

, 

, 

 (1987) (federal constitutional decisions apply
retroactively to cases on direct appeal).
         Because the jury was polled, the error was also one
that appeared on the record, without requiring competing
inferences. Unlike in State v. Gornick, 

, 

 (2006), nothing in the record supports an inference that
the trial court’s receipt of nonunanimous verdicts was any-
thing other than a violation of the constitution.
         Even when the foregoing conditions are satisfied,
the decision whether to review a plain error rests with the
discretion of the appellate court. “That discretion entails
making a prudential call that takes into account an array of
considerations[.]” Vanornum, 

. Factors to con-
sider in making that decision include
   “the competing interests of the parties; the nature of the
   case; the gravity of the error; the ends of justice in the par-
   ticular case; how the error came to the court’s attention;
504                                               State v. Ulery

   and whether the policies behind the general rule requir-
   ing preservation of error have been served in the case in
   another way, i.e., whether the trial court was, in some man-
   ner, presented with both sides of the issue and given an
   opportunity to correct any error.”
Ailes v. Portland Meadows, Inc., 

, 382 n 6, 

 (1991). We conclude that the nature of the error in
this case is such that an appellate court ordinarily should
review it.

          Here, given the trial court’s inability to correct the
error under controlling law, the fact that it was not given
an opportunity to do so does not weigh heavily. Cf. State
v. Fults, 

, 523 n 5, 

 (2007) (giving
weight to that factor where, “had the matter been called to
the judge’s attention, we have no reason to think that the
judge would not have followed correct procedure”). And the
error is a grave one, different in kind from the violation of
Blakely v. Washington, 

, 

, 

 (2004), that we held did not justify an exercise of
discretion in State v. Ramirez, 

, 

 (2007), adh’d to as modified on recons, 

, 

 (2008). There, we concluded that erroneously hav-
ing certain findings made by the trial judge rather than a
jury was not a grave error when “no reasonable factfinder
(whether a judge or a jury) could conclude” differently. Id. at
513. Here, members of the jury necessarily could—because
they did—conclude that the state had failed to prove its case
against defendant beyond a reasonable doubt. For the same
reason, defendant has a significant interest in a new trial
before a jury properly instructed that it must be unanimous
to convict. And, though the state has a competing interest
in avoiding the expense and difficulty associated with a
retrial, the balance weighs in defendant’s favor.

         We also accept the state’s concession that the error,
when reviewed, is one that requires reversal of defendant’s
conviction. Assuming that a harmless error analysis
applies, the receipt of a nonunanimous verdict cannot be
found “harmless beyond a reasonable doubt.” Chapman v.
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California, 

, 

, 

 (1967)
(setting forth the harmless error standard applicable to
violations of the federal constitution). We therefore reverse
the decision of the Court of Appeals, reverse defendant’s
judgment of conviction, and remand this case to the trial
court.
         The petition for review is allowed. The decision of
the Court of Appeals is reversed. The judgment of the circuit
court is reversed, and the case is remanded to the circuit
court for further proceedings.