State v. Paluda ( 2020 )

834
Submitted October 29; in Case No. 18CR08523, conviction on Count 1 reversed
and remanded, remanded for resentencing, otherwise affirmed; in Case No.
18CR42276, convictions on Counts 3 and 5 reversed and remanded, remanded
for resentencing, otherwise affirmed December 9, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
PATRICK MICHAEL PALUDA,
Defendant-Appellant.
Washington County Circuit Court
18CR42276, 18CR08523;
A169750 (Control), A169748
479 P3d 345
Janelle F. Wipper, Judge.
Bear Wilner-Nugent filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patrick M. Ebbett, Assistant Attorney
General, filed the brief for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
PER CURIAM
In Case No. 18CR08523, conviction on Count 1 reversed
and remanded; remanded for resentencing; otherwise
affirmed. In Case No. 18CR42276, convictions on Counts 3
and 5 reversed and remanded; remanded for resentencing;
otherwise affirmed.
Cite as 307 Or App 834 (2020) 835
PER CURIAM
Defendant appeals judgments of conviction in two
consolidated domestic violence cases. In Case No. 18CR08523,
defendant was convicted by nonunanimous jury verdict of
assault in the fourth degree constituting domestic violence,
ORS 163.160 and ORS 132.586 (Count 1), and harassment,
ORS 166.065 (Count 2). In Case No. 18CR42276, defendant
was convicted by nonunanimous jury verdict of assault
in the second degree constituting domestic violence, ORS
163.175 and ORS 132.586 (Count 3), and strangulation, ORS
163.187 (Count 5).1 Defendant contends that the trial court
plainly erred under the Sixth Amendment to the United
States Constitution when it entered judgments of conviction
based on nonunanimous jury verdicts.
In Ramos v. Louisiana, 590 US ___, 140 S Ct 1390,
206 L Ed 2d 583 (2020), the United States Supreme Court
concluded that nonunanimous jury verdicts violated the
Sixth Amendment. In State v. Ulery, 366 Or 500, 501, 464
P3d 1123 (2020), the Oregon Supreme Court concluded that
a trial court’s acceptance of a nonunanimous verdict consti-
tuted 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 because 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 nonunanimous verdicts in these cases constitutes revers-
ible error as to Count 1 in Case No. 18CR08523 and Counts
3 and 5 in Case No. 18CR42276. The state does not concede
that defendant’s conviction for harassment (Count 2 in Case
No. 18CR08523) should be reversed because, it argues, the
maximum penalty for that offense, a Class B misdemeanor,
is six months’ imprisonment, and the Sixth Amendment
jury-trial right does not apply to such offenses. In response to
the state’s argument, defendant concedes, given his failure
to preserve an argument to the contrary, that the harass-
ment count is subject to the Sixth Amendment’s petty-
offense exception, and that his conviction on that count may
1
Defendant was also convicted of other crimes in Case No. 18CR42276 but
does not challenge those convictions in this appeal.
836 State v. Paluda
therefore stand. We accept the parties’ concessions and, for
the reasons set forth in Ulery, we exercise our discretion to
correct the error.
In Case No. 18CR08523, conviction on Count 1
reversed and remanded; remanded for resentencing; other-
wise affirmed. In Case No. 18CR42276, convictions on
Counts 3 and 5 reversed and remanded; remanded for resen-
tencing; otherwise affirmed.