State v. Bledsoe , 316 Or. App. 689 ( 2021 )

689
Submitted November 10; conviction on Count 1 reversed and remanded,
remanded for resentencing, otherwise affirmed December 29, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
LEMAN LOUIS BLEDSOE,
Defendant-Appellant.
Umatilla County Circuit Court
18CR54385; A172308
502 P3d 1194
Christopher R. Brauer, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Anne Fujita Munsey, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joanna Hershey, Assistant Attorney
General, filed the brief for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
PER CURIAM
Conviction on Count 1 reversed and remanded; remanded
for resentencing; otherwise affirmed.
690 State v. Bledsoe
PER CURIAM
Defendant was convicted after a jury trial for first-
degree manslaughter (Count 1), second-degree manslaughter
(Count 2), failure to perform duties of a driver–death (Count 3),
driving under the influence of intoxicants (Count 4), failure
to perform duties of a driver–property damage (Count 6), two
counts of recklessly endangering another person (Counts 7
and 8), and reckless driving (Count 9).1 The jury returned a
10-2 guilty verdict on Count 1; on all other counts, the jury’s
guilty verdict was unanimous. The trial court merged the
guilty verdict on Count 2 with the conviction on Count 1.
On appeal, defendant contends that the trial court
erred in instructing the jury that it could convict based on
nonunanimous verdicts, in accepting the jury’s nonunan-
imous guilty verdict on Count 1, and in accepting the
jury’s unanimous verdicts on the remaining charges. As
the state properly concedes, the trial court erred in giving
a jury instruction that allowed for conviction based on a
nonunanimous verdict and in accepting the jury’s nonunan-
imous verdict on Count 1, requiring reversal and remand
of that count. Ramos v. Louisiana, 590 US ___, 140 S Ct
1390, 206 L Ed 2d 583 (2020). However, defendant is not
entitled to reversal of the remaining counts, for which the
jury returned unanimous verdicts. Defendant’s arguments
to the contrary—that a nonunanimous verdict instruction
is structural error and not harmless beyond a reasonable
doubt—were rejected by the Supreme Court in State v.
Flores Ramos, 367 Or 292, 478 P3d 515 (2020), and State
v. Ciraulo, 367 Or 350, 478 P3d 502 (2020), cert den, ___
US ___, 141 S Ct 2836 (2021). Consequently, we reverse and
remand defendant’s conviction on Count 1 and remand the
case for resentencing, which includes entering a new disposi-
tion on the merged count, 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).
1
The trial court granted defendant’s motion for judgment of acquittal on the
charge of reckless endangerment of highway workers (Count 5).
Cite as 316 Or App 689 (2021) 691
Conviction on Count 1 reversed and remanded;
remanded for resentencing; otherwise affirmed.