State v. Enloe , 316 Or. App. 680 ( 2021 )

680
Submitted November 10; reversed and remanded as to sentence-enhancement
fact and offense-subcategory allegation of Count 2, remanded for resentencing,
otherwise affirmed December 29, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
CARL DANIEL ENLOE,
aka Carl Enloe,
Defendant-Appellant.
Jackson County Circuit Court
18CR81545; A171067
502 P3d 1213
Lorenzo A. Mejia, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Shawn Wiley, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
PER CURIAM
Reversed and remanded as to sentence-enhancement fact
and offense-subcategory allegation of Count 2; remanded for
resentencing; otherwise affirmed.
Cite as 316 Or App 680 (2021) 681
PER CURIAM
Defendant was convicted after a jury trial of pos-
session of a weapon by an inmate, ORS 166.275 (Count 1),
and supplying contraband, ORS 162.185 (Count 2). The jury
voted unanimously to convict on both counts. The jury, how-
ever, voted 11-1 on the question whether the contraband
alleged in Count 2 was a dangerous weapon, an offense
subcategory alleged by the state.1 The jury also found one
sentence-enhancement fact (that defendant was on proba-
tion, parole, or post-prison supervision when he committed
the crimes) by a general “yes” vote. Both parties declined
the trial court’s invitation to have the jury polled as to
that question. The court merged the jury’s guilty verdict
on Count 2 into the conviction on Count 1 and imposed an
upward durational departure sentence on Count 1 based on
the enhancement fact found by the jury.
On appeal, defendant contends that the trial court
erred in instructing the jury that it could return nonunan-
imous verdicts as to both the charged offenses and the
charged sentence-enhancement facts. Although the court’s
jury instruction was error under Ramos v. Louisiana, 590
US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020), contrary
to defendant’s argument otherwise, that error is not struc-
tural and is harmless with respect to the jury’s unanimous
verdict on Count 1 and its unanimous verdict on the base
offense of Count 2, that is, absent the “dangerous weapon”
subcategory allegation. See State v. Flores Ramos, 367 Or
292, 478 P3d 515 (2020).
The state concedes, and we agree, that the nonunan-
imous verdict instruction renders the jury’s finding on the
offense subcategory allegation of Count 2 invalid in light of
Ramos. See State v. Huynh, 315 Or App 456, 458, 500 P3d 767
(2021) (explaining that, under Apprendi v. New Jersey, 530
US 466, 490, 120 S Ct 2348, 147 L Ed 2d 435 (2000) (other
than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the statutory maximum
must be submitted to a jury and proved beyond a reasonable
1
That subcategory factor elevates the crime-seriousness category of the
offense from a level 4 to a level 6 on the sentencing guidelines grid. OAR 213-
018-0070(2), (4).
682 State v. Enloe
doubt), and Blakely v. Washington, 542 US 296, 303-04, 124
S Ct 2531, 159 L Ed 2d 403 (2004) (the statutory maximum
sentence for a crime for Apprendi purposes is the sentence
authorized by the sentencing guidelines without additional
factual determinations), the Sixth Amendment provides the
right to unanimous jury findings on sentence-enhancement
facts); OAR 213-018-0070 (proof of additional fact that the
offender supplied one or more dangerous weapons (not
including firearms) as contraband elevates the crime seri-
ousness ranking of the offense for sentencing purposes). The
state contends, however, that the invalidity of that finding is
“legally inconsequential,” because the court merged the ver-
dict on Count 2 with the conviction on Count 1 and imposed
sentence only on Count 1. Therefore, the state reasons, the
invalid finding provides no basis for relief on appeal.
We disagree that the invalid finding has no legal
effect. To illustrate: A later reversal of defendant’s conviction
on Count 1 (for example, on review by the Supreme Court or
on post-conviction review) would result in the “unmerging”
of Counts 1 and 2, such that the trial court could impose
judgment and sentence on Count 2. See State v. Cockrell, 170
Or App 29, 31, 10 P3d 960 (2000) (reversal of conviction and
affirmance of another that had been merged with it “has the
effect of ‘unmerging’ those crimes,” freeing the trial court to
enter judgment and sentence the defendant on the merged
count). It also misstates the nature of the criminal conduct
for which defendant was validly found guilty. We therefore
reverse and remand as to the “dangerous weapon” subcate-
gory allegation of Count 2. On remand, the state may elect
to retry the “dangerous weapon” subcategory allegation;
otherwise, the record will reflect that defendant was found
guilty on Count 2 without that allegation.
We reach a similar result with regard to the jury’s
general “yes” vote on the sentence-enhancement fact—that
defendant was on probation, parole, or post-prison supervi-
sion when he committed the offenses. Huynh, 315 Or App
at 458. And, as we recently held in State v. Scott, 309 Or
App 615, 620-21, 483 P3d 701 (2021), where, as here, a
unanimous verdict instruction has been preserved and
the erroneous instruction given, the burden is on the state
Cite as 316 Or App 680 (2021) 683
to demonstrate that the instructional error was harmless
beyond a reasonable doubt. Without a jury poll, the state
cannot meet that burden. Accordingly, we also reverse and
remand as to the sentence-enhancement fact found by the
jury. See State v. Patino-Ochoa, 316 Or App 478, 480, 502
P3d 783 (2021) (“Where a conviction is based on a unani-
mous verdict, but a sentencing-enhancement factor is based
on a nonunanimous verdict, we affirm the conviction but
remand for resentencing.”).
Reversed and remanded as to sentence-enhancement
fact and offense-subcategory allegation of Count 2; remanded
for resentencing; otherwise affirmed.