State v. Newton ( 2020 )

842
Argued and submitted October 15, 2019, reversed and remanded December 9;
on respondent’s petition for reconsideration filed December 16, 2020,
reconsideration allowed by opinion March 10, 2021
See 309 Or App 757, ___ P3d ___ (2021)
STATE OF OREGON,
Plaintiff-Respondent,
v.
ANTHONY C. NEWTON,
aka Anthony Carl Newton,
Defendant-Appellant.
Multnomah County Circuit Court
17CR79797; A167654
477 P3d 417
Leslie G. Bottomly, Judge.
Rond Chananudech, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Joanna Hershey, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before DeHoog, Presiding Judge, and Egan, Chief Judge,
and Mooney, Judge.*
PER CURIAM
Reversed and remanded.
______________
* Egan, C. J., vice Hadlock, J. pro tempore.
Cite as 307 Or App 842 (2020) 843
PER CURIAM
Defendant was convicted of strangulation consti-
tuting domestic violence, ORS 163.187(2), by nonunanimous
jury verdict. On appeal, defendant argues that (1) the trial
court erred by refusing to instruct the jury that it must find
that defendant lacked the alleged victim’s consent when he
choked her and (2) the court’s acceptance of a nonunanimous
verdict constitutes plain error under the Sixth Amendment
to the United States Constitution. In Ramos v. Louisiana,
590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020), the
United States Supreme Court concluded that nonunani-
mous jury verdicts violate 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 acceptance of a
nonunanimous verdict constitutes plain error. Further, the
Supreme Court exercised its discretion to correct that plain
error because of its gravity and because failure to raise the
issue in the trial court did not weigh heavily against correc-
tion. Even if the issue had been raised, the trial court would
not have been able to correct the error under Oregon law as
it existed at that time.
The state concedes, and we agree, that the trial
court’s acceptance of a nonunanimous verdict on the stran-
gulation count constitutes plain error. In light of that con-
cession, we need not address defendant’s first assignment
of error concerning instructional error related to strangula-
tion and lack of consent. For the reasons set forth in Ulery,
we exercise our discretion to correct the error in this case.
Reversed and remanded.