State v. Summerlyn ( 2021 )

230
Submitted May 26, 2020, affirmed December 8, 2021, petition for review denied
March 24, 2022 (369 Or 505)
STATE OF OREGON,
Plaintiff-Respondent,
v.
ADAM KOHL SUMMERLYN,
Defendant-Appellant.
Lane County Circuit Court
18CR08585; A168781
501 P3d 1076
Defendant appeals a judgment of conviction for first-degree assault with a
firearm and felon in possession of a firearm. He contends that the trial court
erred in instructing the jury that it could reach nonunanimous verdicts and in
finding persistent involvement in similar offenses and, consequently, imposing
a departure sentence. Held: The erroneous jury instruction was not structural
error and, because the jury’s guilty verdicts were unanimous, it was harmless.
Defendant’s arguments regarding persistent involvement in similar offenses
were foreclosed by case law.
Affirmed.
Karsten H. Rasmussen, Senior Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Laura A. Frikert, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and David B. Thompson, Assistant Attorney
General, filed the brief for respondent.
Adam Kohl Summerlyn filed the supplemental brief
pro se.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
DeHOOG, J.
Affirmed.
Cite as 316 Or App 230 (2021) 231
DeHOOG, J.
Defendant appeals a judgment of conviction for
first-degree assault with a firearm, ORS 163.185, and felon
in possession of a firearm (FIP), ORS 166.270. He raises four
assignments of error in his opening brief and one additional
assignment in a supplemental brief. We reject without dis-
cussion the first assignment of error in defendant’s opening
brief and the supplemental assignment. As explained below,
defendant’s arguments raised in his remaining assignments
of error are foreclosed by case law. Accordingly, we affirm.
The relevant facts are procedural and undisputed.
Defendant was charged with attempted murder, first-degree
assault with a firearm, FIP, and unlawful use of a weapon
with a firearm (UUW). At trial, the court instructed the
jury that it could find defendant guilty if 10 or more jurors
agreed on the verdict. Defendant did not object.
The jury acquitted defendant of attempted murder
and found him guilty of first-degree assault with a firearm,
FIP, and UUW. The guilty verdicts were unanimous. The
court merged the UUW count with the FIP count and, as
noted above, entered a judgment convicting defendant of
assault and FIP.
The state had given notice of its intention to request
an enhanced sentence pursuant to OAR 213-008-0002
(1)(b)(D) based on defendant’s persistent involvement in
similar offenses. Defendant waived his right to a jury trial
on the enhancement factor. The court heard evidence that
defendant had one prior FIP conviction and testimony that,
in an incident separate from the conduct underlying the
prior FIP conviction, defendant had previously threatened
another person with a gun. The court found that defen-
dant’s persistent involvement in firearms offenses justified
a departure sentence on the FIP conviction, and the court
sentenced defendant accordingly.
We begin with defendant’s fourth assignment of
error, in which he contends that the trial court erred in
instructing the jury that it could reach nonunanimous ver-
dicts. Defendant did not preserve that assignment, but he
contends that the error is structural or, if it is not, that it
232 State v. Summerlyn
is nevertheless plain error that merits reversal. In light of
the Supreme Court’s decision in Ramos v. Louisiana, 590
US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020), defendant
is correct that the court erred in instructing the jury that it
could reach nonunanimous verdicts. However, the erroneous
instruction was not structural error. State v. Flores Ramos,
367 Or 292, 334, 478 P3d 515 (2020). And, because the jury
unanimously found defendant guilty of the counts at issue
on appeal, the error was harmless. Id. Accordingly, we reject
defendant’s fourth assignment of error.
Next, we consider defendant’s contention that the
trial court erred in finding persistent involvement in similar
offenses and, consequently, imposing a departure sentence.
Defendant contends that a finding of persistent involvement
in offenses similar to FIP under OAR 213-008-0002(1)(b)(D)
requires two or more firearms-related convictions. Here,
he points out, the state provided evidence of only one prior
firearms-related conviction.
OAR 213-008-0002(1) lists the aggravating factors
that “may be considered in determining whether substan-
tial and compelling reasons for a departure exist.” OAR 213-
008-0002(1)(b)(D) defines the persistent-involvement factor:
“Persistent involvement in similar offenses or repetitive
assaults. This factor may be cited when consecutive sen-
tences are imposed only if the persistent involvement in
similar offenses or repetitive assaults is unrelated to the
current offense.”
Defendant correctly points out that we have held
that persistent involvement under OAR 213-008-0002
(1)(b)(D) requires evidence that the defendant has committed
more than one offense similar to the one being sentenced.
See, e.g., State v. Rodriguez, 113 Or App 696, 699, 833 P2d
1343 (1992) (noting that the persistent involvement factor
“encompasses a pattern of criminal behavior which incorpo-
rates the offender’s inclination to engage in behavior with
increasingly serious consequences” and, consequently, that
the “[d]efendant’s one prior conviction suggests an emerging
pattern; it does not establish it”). In dictum, both we and the
Supreme Court have stated that requirement in terms of
multiple prior convictions: In State v. Ceballos, 162 Or App
Cite as 316 Or App 230 (2021) 233
477, 482, 986 P2d 680 (1999), rev den, 330 Or 252 (2000),
we explained that, in Rodriguez, 113 Or App at 699, we had
held that “more than one prior conviction was required to
establish the requisite ‘pattern’ of criminal activity.” See also
State v. Bray, 342 Or 711, 724, 160 P3d 983 (2007) (stating,
in the course of considering whether the persistent involve-
ment factor must be found by a jury, that, “[i]n determining
whether the record establishes ‘[p]ersistent involvement in
similar offenses,’ a sentencing court must do more than find
that a defendant has two or more prior convictions for sim-
ilar offenses”; “the trier of fact must infer from the number
and frequency of those prior convictions whether the defen-
dant’s involvement in those offenses is ‘persistent’ ” (empha-
sis added)).
However, we have also—and more recently—held
that unadjudicated conduct may constitute one of the
offenses necessary to establish persistent involvement. In
State v. Cam, 255 Or App 1, 11, 296 P3d 578, adh’d to as
modified on recons, 256 Or App 146, 300 P3d 208, rev den,
354 Or 148 (2013), we rejected the defendant’s argument that
the trial court had plainly erred in failing to instruct the
jury that, for purposes of its deliberations on the persistent-
involvement enhancement factor, “it could not consider
uncharged misconduct.” We held that the trial court’s error
was not plain, in part, because, “[i]n determining persistent
involvement, a jury may consider a defendant’s prior crimi-
nal conduct, even if that conduct did not result in a criminal
conviction.” Id. at 11. In support of that proposition, we cited
State v. Barrett, 134 Or App 162, 165, 894 P2d 1183, rev
den, 321 Or 340 (1995), and observed that, in Barrett, we
had held that the “defendant’s admitted history of sexu-
ally abusing young women could be considered ‘persistent
involvement’ even in the absence of criminal convictions.”
Cam, 255 Or App at 11; see also Barrett, 134 Or App at 165(“even in the absence of criminal convictions,” the defen-
dant’s history of sexually abusing young women, established
by testimony about the defendant’s admissions, warranted a
departure sentence based on persistent involvement).
In this case, defendant has not acknowledged our
holding in Cam, in which we expressly adopted the reason-
ing from Barrett. It follows that defendant has not advanced
234 State v. Summerlyn
any argument relying on the arguable inconsistency of our
decisions in Cam and Barrett with our other case law or
with the understanding expressed by the Supreme Court in
Bray. More significantly, perhaps, he has not argued that
our decision in Cam is plainly wrong in light of those other
opinions and should therefore be overruled.
It may be that the Supreme Court will one day adopt
its dictum in Bray as a holding, in which case defendant’s
view that proof of multiple prior convictions is required to
establish the persistent-involvement departure factor would
ultimately be proved correct. However, in the absence of an
argument that more fully addresses the current state of the
case law, this case does not present an opportunity for us
to resolve the issue in a way that departs from our existing
precedent. Accordingly, we affirm.
Affirmed.