State v. Bradley ( 2021 )

598
On appellant’s petition for reconsideration filed December 9, 2020, and
respondent’s response to petition for reconsideration filed January 11;
reconsideration allowed, former disposition withdrawn, opinion (307 Or App
374, 477 P3d 409) modified and adhered to as modified, convictions on Counts
12 to 14 reversed and remanded, otherwise affirmed March 10, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
RONALD EDWIN BRADLEY II,
Defendant-Appellant.
Washington County Circuit Court
C081099CR; A166375
483 P3d 717
Defendant seeks reconsideration of State v. Bradley, 307 Or App 374, 477
P3d 409 (2020), where the court concluded that the trial court erred in failing
to merge Counts 12 and 13 into a single conviction for first-degree sexual abuse.
For the first time on reconsideration and in defendant’s third appeal, defendant
argues, and the state concedes, that, in light of Ramos v. Louisiana, 590 US ___,
140 S Ct 1390, 206 L Ed 2d 583 (2020), the trial court plainly erred when it
instructed the jury that it could find defendant guilty based on a nonunanimous
verdict and its acceptance of nonunanimous verdicts, and that State v. Herfurth,
307 Or App 534, 478 P3d 601 (2020), allows the court to consider his argument,
although not raised earlier. Held: The Court of Appeals agreed with the par-
ties that the trial court plainly erred and, considering the significant change in
the law from Ramos and that no final judgment has yet been entered, Herfurth
allowed the court to reach defendant’s claim. The court also rejected the parties’
request to withdraw its prior opinion because the merger issue is likely to arise
on remand.
Reconsideration allowed; former disposition withdrawn; opinion modified and
adhered to as modified; convictions on Counts 12 to 14 reversed and remanded;
otherwise affirmed.
D. Charles Bailey, Jr., Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Meredith Allen, Deputy Public Defender, Office
of Public Defense Services, for petition.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jonathan N. Schildt, Assistant Attorney
General, for response.
Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
Cite as 309 Or App 598 (2021) 599
ORTEGA, P. J.
Reconsideration allowed; former disposition withdrawn;
opinion modified and adhered to as modified; convictions on
Counts 12 to 14 reversed and remanded; otherwise affirmed.
600 State v. Bradley
ORTEGA, P. J.
Defendant, who was convicted of first-degree sexual
abuse (Counts 12 and 13) and first-degree sodomy (Count 14),
seeks reconsideration of our decision in State v. Bradley, 307
Or App 374, 477 P3d 409 (2020). Defendant argues for the
first time on reconsideration, and the state concedes, that
in light of Ramos v. Louisiana, 590 US ___, 140 S Ct 1390,
206 L Ed 2d 583 (2020), the trial court plainly erred when it
instructed the jury that it could find defendant guilty based
on a nonunanimous verdict and its acceptance of nonunan-
imous verdicts. As explained below, we agree with the par-
ties, accept the state’s concession, and exercise our discre-
tion to correct the error. We therefore grant reconsideration,
modify our opinion, and reverse and remand defendant’s
convictions for a new trial.
This is the third time this matter is before us on
appeal. In the first two appeals, we remanded for resen-
tencing.1 Our prior opinion in defendant’s third appeal
addressed sentencing issues that occurred at defendant’s
last resentencing. In that opinion, we concluded that the
guilty verdicts on Counts 12 and 13 should have merged
and remanded for resentencing. Bradley, 307 Or App at
376.2
After we took defendant’s case under advisement but
before we had issued our opinion, the United State Supreme
Court decided Ramos, which held that the jury unanimity
requirement of the Sixth Amendment to the United States
Constitution is incorporated into and made applicable to the
states through the Due Process Clause of the Fourteenth
Amendment. 590 US at ___, 140 S Ct at 1397.
After we issued our opinion in this case, we decided
State v. Herfurth, 307 Or App 534, 478 P3d 601 (2020). In
Herfurth, after two previous appeals had led to resentencing,
1
In the first appeal, we also reversed defendant’s convictions related to
another victim, but those charges were later dismissed on the state’s motion.
2
Defendant raised three assignments of error. We rejected without discus-
sion his first assignment. Our resolution of defendant’s second assignment, that
the guilty verdicts on Counts 12 and 13 merge into a single conviction, obviated
the need for us to reach defendant’s third assignment related to the imposition of
consecutive sentences on those counts. Bradley, 307 Or App at 376.
Cite as 309 Or App 598 (2021) 601
the defendant raised for the first time in a third appeal a
challenge to the trial court’s entry of judgments of conviction
based on nonunanimous verdicts under Ramos. Id. at 536.
We rejected the state’s argument that the law-of-the-case
doctrine required defendant to have raised that challenge in
his first appeal, because that doctrine does not apply where
no prior appellate court has ruled on the raised claim in that
case. Id. at 536, 538. We further concluded that additional
considerations weighed in favor of considering defendant’s
claim, including that Ramos, which “upended 48 years of
precedent,” significantly changed the legal landscape in
Oregon, the defendant had raised other nonfrivolous claims
in each appeal, and the third appeal had not yet reached
finality. Id. We therefore reversed defendant’s convictions
and remanded. Id. at 538-39.
In defendant’s petition for reconsideration in this
case, he raises two assignments of error not previously
raised in his appeals, arguing that, under Ramos, the trial
court erred when it instructed the jury that it could return
nonunanimous guilty verdicts and in accepting those ver-
dicts on Counts 12, 13, and 14. He concedes that he failed
to preserve his arguments below, but asks that we review
them as plain error. Defendant further argues that, because
he is in the same position as the defendant in Herfurth, he
is not foreclosed from raising his claims of error for the first
time in his third appeal, and he asks us to waive any court
rules that may prevent us from granting relief and with-
draw our prior decision.
The state concedes that the trial court plainly erred,
that Herfurth controls, and that we should waive any court
rules preventing us from reaching defendant’s assignments.
Like defendant, the state asks us to reverse defendant’s
convictions, remand for a new trial, and withdraw our prior
opinion.
Here, on the merits, we agree with the parties and
accept the state’s concession that the trial court erred. Below,
the trial court instructed the jury that “10 or more jurors
must agree on your verdict”; the jury returned nonunani-
mous verdicts on Counts 12, 13, and 14; and the trial court
accepted those guilty verdicts without objection by defendant.
602 State v. Bradley
Under Ramos, the court’s instruction and acceptance of the
nonunanimous verdicts was error. Further, in State v. Ulery,
366 Or 500, 503-04, 464 P3d 1123 (2020), the Supreme Court
concluded that a trial court’s acceptance 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. We
therefore agree that the trial court plainly erred and, for
the reasons set forth in Ulery, we exercise our discretion to
correct the errors in this case.
We also agree with the parties that Herfurth con-
trols and allows us to reach defendant’s claims even though
they were raised for the first time in his third appeal. As
in Herfurth, we have not previously considered a nonunani-
mous jury claim in this case, defendant’s prior appeals were
based on nonfrivolous claims, a final judgment has not yet
been entered, and there has been a significant change in the
law. And, although ORAP 5.45(1) typically requires a claim
of error to be raised in a party’s opening brief, the change of
law from Ramos constitutes good cause under ORAP 1.20(5)
to waive that requirement. State v. Williams, 366 Or 495,
498-99, 466 P3d 55 (2020).
However, we disagree with the parties that we
should withdraw our prior opinion. That opinion addressed
whether defendant’s guilty verdicts on Counts 12 and 13
should merge. Because we are reversing defendant’s convic-
tions for a new trial, the issue of merger on Counts 12 and 13
is likely to arise on remand if he is again convicted on those
counts. See State v. Merrill, 309 Or App 68, 71, 481 P3d 441
(2021) (declining to withdraw prior opinion where court
reversed convictions and remanded for a new trial, and the
opinion addressed merger of the reversed counts, which could
arise again on remand). As we recently explained in Merrill,
“[e]ven when a disposition obviates the need to address an
assignment of error, we may nevertheless address questions
of law that may still be at issue after the case is remanded.”
Id. at 71. For that reason, we decline to withdraw our prior
opinion.
Cite as 309 Or App 598 (2021) 603
Reconsideration allowed; former disposition with-
drawn; opinion modified and adhered to as modified; convic-
tions on Counts 12 to 14 reversed and remanded; otherwise
affirmed.