State v. Irwin , 311 Or. App. 618 ( 2021 )

618
Submitted April 14; remanded for entry of judgment omitting no-contact
provision, otherwise affirmed May 19, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
MATTHEW SHANE IRWIN,
Defendant-Appellant.
Hood River County Circuit Court
16CR32239; A171436
487 P3d 70
Karen Ostrye, Judge.
Kenneth A. Kreuscher filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher A. Perdue, Assistant
Attorney General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
PER CURIAM
Remanded for entry of judgment omitting no-contact pro-
vision; otherwise affirmed.
Cite as 311 Or App 618 (2021) 619
PER CURIAM
Defendant appeals a judgment of conviction for
first-degree assault, ORS 163.185. He assigns error to the
trial court’s imposition of a no-contact order as a condition
of incarceration and the court’s instruction to the jury that
it could convict by a less than unanimous verdict.
After a jury unanimously found defendant guilty of
first-degree assault, the trial court sentenced defendant to
90 months in prison and 36 months of post-prison supervi-
sion. It also imposed a condition that he have no direct or
indirect contact with the victim or her family. On appeal,
defendant contends that the trial court plainly erred by
imposing a no-contact provision in a judgment imposing
a sentence of incarceration. The state concedes that the
trial court plainly erred. See State v. Coventry, 290 Or App
463, 464, 415 P3d 97 (2018) (concluding that the trial court
plainly erred when it imposed a no-contact order in a judg-
ment imposing a term of incarceration). We agree that the
court plainly erred and exercise our discretion to correct the
error for the reasons cited in State v. Hall, 282 Or App 9, 11,
385 P3d 1225 (2016), rev den, 360 Or 752 (2017). Accordingly,
we reverse that portion of the judgment and remand with
instructions to omit the no-contact provision. Coventry, 290
Or App at 465 (specifying that remedy).
Next, defendant contends that the trial court
plainly erred in giving the nonunanimous jury instruc-
tion and that the court’s error constitutes structural error
requiring reversal. The state concedes that the trial court’s
instruction that the verdict need not be unanimous was
erroneous under Ramos v. Louisiana, 590 US ___, 140 S Ct
1390, 206 L Ed 2d 583 (2020), but the state contends that
the error was harmless because the verdict was unani-
mous. We agree that the error was harmless. State v. Flores
Ramos, 367 Or 292, 319, 478 P3d 515 (2020) (concluding that
nonunanimous jury instruction was not a structural error
that categorically requires reversal); State v. Ciraulo, 367
Or 350, 354, 478 P3d 502 (2020) (concluding that an errone-
ous nonunanimous jury instruction was “harmless beyond a
reasonable doubt” when the verdict was unanimous).
Remanded for entry of judgment omitting no-contact
provision; otherwise affirmed.