State v. Yener , 307 Or. App. 829 ( 2020 )

829
Submitted November 19, reversed and remanded December 9, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
LENNY YENER,
Defendant-Appellant.
Marion County Circuit Court
18CR79941, 16CR68642;
A170249 (Control), A170250
477 P3d 470
Thomas M. Hart, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kali Montague, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patrick M. Ebbett, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
PER CURIAM
Reversed and remanded.
830 State v. Yener
PER CURIAM
In the first of these consolidated cases, defendant
was convicted by a nonunanimous jury verdict of felony
strangulation constituting domestic violence. ORS 163.187.
In the other case, defendant’s probation on a conviction
for driving under the influence of intoxicants was revoked
based on his conviction in the strangulation case. On
appeal, defendant makes numerous arguments concerning
alleged errors that occurred during trial and at sentencing.
Defendant also argues that the trial court’s acceptance of
a nonunanimous verdict for strangulation constitutes plain
error under the Sixth Amendment to the United States
Constitution. In Ramos v. Louisiana, 590 U.S. ___, 140 S Ct
1390, 206 L Ed 2d 583 (2020), the Court concluded that
nonunanimous jury verdicts violated the Sixth Amendment.
In State v. Ulery, 366 Or 500, 504, 464 P3d 1123 (2020), the
Oregon Supreme Court concluded that a trial court’s accep-
tance of a nonunanimous verdict constituted plain error and
exercised its discretion to correct that error in light of the
gravity of the error and because failure to raise the issue in
the trial court did not weigh heavily against correction, as
the trial court would not have been able to correct the error
under controlling law.
The state concedes that the trial court’s acceptance
of the nonunanimous verdict in the strangulation case
constitutes plain error, and that the probation revocation
judgment should be reversed as well as it was based on the
strangulation conviction. For the reasons set forth in Ulery,
we exercise our discretion to correct the error. Our dispo-
sition obviates the need to address defendant’s remaining
arguments.
Reversed and remanded.