State v. Streeter ( 2021 )

571
Submitted September 29, 2020; remanded for resentencing, otherwise affirmed
April 7; petition for review denied July 29, 2021 (368 Or 511)
STATE OF OREGON,
Plaintiff-Respondent,
v.
SHERREE MONIQUE STREETER,
aka Sheree Monique Streeter,
aka Sherree Moni Streeter,
Defendant-Appellant.
Multnomah County Circuit Court
17CR83097; A170006
485 P3d 306
Kathleen M. Dailey, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Andrew D. Robinson, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Doug M. Petrina, Assistant Attorney
General, filed the brief for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
PER CURIAM
Remanded for resentencing; otherwise affirmed.
572 State v. Streeter
PER CURIAM
Defendant was found guilty by unanimous jury
verdict on one count of felon in possession of a firearm and
one count of unlawful possession of a firearm. On appeal, in
two assignments, defendant claims the trial court erred by
(1) imposing a sentence without a jury finding or admission
as to a prior juvenile adjudication, and (2) instructing the
jury that it could return nonunanimous verdicts. Because
we conclude that the trial court erred by sentencing without
an admission or factual finding by the jury, we remand for
resentencing, but otherwise affirm.
In the first assignment, defendant argues that
when used as an enhancement factor for sentencing, the
existence of a prior juvenile adjudication must be either
admitted by defendant or proved to the factfinder. For the
reasons explained in State v. Harris, 339 Or 157, 118 P3d
236 (2005), we agree. Here, as the state concedes, neither
scenario occurred. Absent this admission or determination
of fact, it was erroneous to use defendant’s prior juvenile
adjudication to increase defendant’s criminal history score
to “C.” Id. at 175; see also State v. Carrera, 307 Or App 387,
393, 477 P3d 458 (2020) (holding it erroneous to use a prior
juvenile adjudication, without admission in the present case,
to increase the defendant’s criminal history score from “D”
to “C”). Consequently, we remand for resentencing.
In the second assignment, defendant asserts that
instructing the jury that it could return nonunanimous ver-
dicts constituted a structural error requiring reversal. 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.
Thereafter, the Oregon Supreme Court held that provid-
ing a nonunanimous jury instruction was not a structural
error that categorically requires reversal in every case.
State v. Flores Ramos, 367 Or 292, 319, 478 P3d 515 (2020).
Additionally, when, as here, the jury returns unanimous
verdicts despite the erroneous nonunanimous instruction,
the Oregon Supreme Court has held that “the error was
harmless beyond a reasonable doubt.” State v. Ciraulo, 367
Cite as 310 Or App 571 (2021) 573
Or 350, 354, 478 P3d 502 (2020). We therefore reject defen-
dant’s second assignment of error.
Remanded for resentencing; otherwise affirmed.