Spratt v. Fhuere ( 2023 )

298 November 29, 2023 No. 615
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
JESSE JAMES SPRATT,
Petitioner-Appellant,
v.
Corey FHUERE,
Superintendent,
Oregon State Penitentiary,
Defendant-Respondent.
Marion County Circuit Court
20CV12489; A178925
Patricia A. Sullivan, Senior Judge.
Submitted October 31, 2023.
Jedediah Peterson and O’Connor Weber LLC filed the
brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin
Gutman, Solicitor General, and Erin K. Galli, Assistant
Attorney General, filed the brief for respondent.
Before Lagesen, Chief Judge, and Tookey, Judge, and
Kamins, Judge.
LAGESEN, C. J.
Affirmed.
Nonprecedential Memo Op: 329 Or App 298 (2023) 299
LAGESEN, C. J.
Petitioner appeals from a judgment denying his
petition for post-conviction relief from guilty pleas entered
in February 2018. He argues that his trial counsel was
inadequate and ineffective for failing to advise him that
a nonunanimous jury conviction could be challenged on
appeal. In support of that proposition, he cites Ramos v.
Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583(2020) (holding that the Sixth Amendment to the United
States Constitution requires a unanimous jury verdict
to convict someone of a felony). The post-conviction court
denied relief because it concluded that petitioner’s trial
counsel was not required to advise in 2018 about the pos-
sibility of the United States Supreme Court 2020 decision
finding Oregon’s nonunanimous jury rule unconstitutional.
We accept the post-conviction court’s supported implicit and
explicit factual findings and review for legal error. Green
v. Franke, 357 Or 301, 312, 350 P3d 188 (2015). Reviewing
under that standard, we affirm.
In 2018, petitioner pled guilty to various charges of
first-degree theft, burglary, felon in possession of a firearm,
and unauthorized use of a vehicle. Petitioner signed a plea
petition waiving his right to a jury trial and was sentenced
to 360 months’ incarceration. Petitioner then initiated this
post-conviction proceeding. He asserts parallel claims of
inadequate and ineffective assistance of trial counsel under
Article I, section 11, of the Oregon Constitution, and the
Sixth and Fourteenth Amendments to the United States
Constitution. Petitioner argues that, at the time of his guilty
plea in 2018, the law allowing nonunanimous jury convic-
tions stood on “shaky ground,” therefore his trial counsel
was inadequate and ineffective for not advising him that
any jury conviction had to be unanimous. He offered a dec-
laration stating that he would have taken his case to trial
if he was advised of an argument regarding nonunanimous
jury verdicts.
Petitioner’s argument fails under our case law. We
have held that the failure to foresee Ramos does not con-
stitute inadequate or ineffective assistance of counsel—at
least, prior to the Supreme Court’s grant of certiorari in
300 Spratt v. Fhuere
Ramos. Smith v. Kelly, 318 Or App 567, 569-70, 508 P3d 77
(2022), rev den, 370 Or 822 (2023). That is so because con-
trolling law at the time permitted criminal convictions by
nonunanimous juries in state courts. Id. at 568. Petitioner’s
argument that Oregon’s nonunanimous jury provision stood
on “shaky ground” is unavailing considering that, in 2018,
the United States Supreme Court was denying certiorari in
cases requesting review of nonunanimous jury convictions.
Ramos, 590 US at ___, 140 S Ct at 1428 n 10 (Alito, J., dis-
senting); Martin v. Kelly, 328 Or App 98, 100 n 1, 537 P3d
200 (2023) (rejecting claim that trial counsel was inade-
quate and ineffective in 2018 for not advising the petitioner,
in connection with a plea, that the Supreme Court might
overrule past precedent allowing for nonunanimous jury
verdicts in state criminal cases).1
Affirmed.
1
We have acknowledged “that there may be instances in which the circum-
stances are such that a lawyer exercising reasonable professional skill and judg-
ment may be expected to anticipate an imminent departure from stare decisis—
for example, after a high court has allowed review to consider the question of
whether to overrule precedent.” Aaron v. Kelly, 325 Or App 262, 264, 528 P3d 1215
(2023). Given the timing of petitioner’s criminal case, no such circumstances are
present here.