Smith v. Kelly ( 2022 )

567
Submitted February 25, affirmed March 30, 2022
RONNIE SCOTT SMITH,
aka Ronnie Scott Medinger,
Petitioner-Appellant,
v.
Brandon KELLY,
Superintendent,
Oregon State Penitentiary,
Defendant-Respondent.
Umatilla County Circuit Court
CV160343; A173925
508 P3d 77
In this post-conviction proceeding, petitioner invokes Ramos v. Louisiana,
590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020), seeking relief from his 2015
convictions on the ground that his trial counsel rendered inadequate and ineffec-
tive assistance, in violation of his rights under Article I, section 11, of the Oregon
Constitution and the Sixth Amendment to the United States Constitution, by not
objecting when the court instructed the jury that its findings did not need to be
unanimous. The jury unanimously agreed that petitioner was guilty of sexual
abuse but split 11-1 on whether petitioner was guilty of rape. Held: The law at the
time of petitioner’s conviction permitted criminal convictions by nonunanimous
juries in cases tried in state courts. Neither Article I, section 11, nor the Sixth
and Fourteenth Amendments, required counsel to foresee that in five years the
Court would decamp from the path it had mapped in Apodaca v. Oregon, 406 US
404, 92 S Ct 1628, 32 L Ed 2d 184 (1972).
Affirmed.
J. Burdette Pratt, Senior Judge.
Jedediah Peterson and O’Connor Weber LLC filed the
brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Rebecca M. Auten, Assistant Attorney
General, filed the brief for respondent.
Before James, Presiding Judge, and Lagesen, Chief Judge,
and Joyce, Judge.
LAGESEN, C. J.
Affirmed.
568 Smith v. Kelly
LAGESEN, C. J.
In 2015, in a case tried to a jury in Multnomah
County, petitioner was convicted of first-degree rape and
first-degree sexual abuse. The law at the time, and for 43
years prior, permitted criminal convictions by nonunani-
mous juries in cases tried in state courts. So, without objec-
tion from petitioner’s lawyer, the trial court instructed the
jury that only 10 jurors need agree on defendant’s guilt to
convict. The jury unanimously agreed that petitioner was
guilty of sexual abuse but split 11-1 on whether petitioner
was guilty of rape.
In this post-conviction proceeding, petitioner invokes
Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed
2d 583 (2020), to seek relief from his convictions on the
ground that his trial counsel rendered inadequate and inef-
fective assistance of counsel, in violation of his rights under
Article I, section 11, of the Oregon Constitution and the
Sixth Amendment to the United States Constitution, by not
objecting to the instruction to the jury that it need not be
unanimous. He also seeks relief on other grounds. The post-
conviction court denied relief and entered judgment against
petitioner. On appeal, petitioner raises multiple assign-
ments of error. We reject all of them, writing only to discuss
petitioner’s claim regarding trial counsel’s failure to object
to the nonunanimous jury instruction.
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).
At issue in this matter are parallel claims of inadequate
assistance of trial counsel under Article I, section 11, and
ineffective assistance of trial counsel under the Sixth
Amendment. To establish that his trial counsel rendered
inadequate assistance for purposes of Article I, section 11,
petitioner was required to prove two elements: (1) a perfor-
mance element: that trial counsel “failed to exercise reason-
able professional skill and judgment”; and (2) a prejudice
element: that “petitioner suffered prejudice as a result of
counsel’s inadequacy.” Johnson v. Premo, 361 Or 688, 699,
399 P3d 431 (2017). A functionally equivalent two-element
standard governs petitioner’s claim of ineffective assistance
Cite as 318 Or App 567 (2022) 569
of counsel under the Sixth Amendment. Id. To prevail on
that claim, petitioner was required to demonstrate that
“trial counsel’s performance ‘fell below an objective stan-
dard of reasonableness’ ” and also that “there was a ‘reason-
able probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.’ ”
Id. at 700 (quoting Strickland v. Washington, 466 US 668,
694, 104 S Ct 2052, 80 L Ed 2d 674 (1984)).
Petitioner’s parallel claims fail as a matter of law
at the first element. Petitioner asserts that, given Ramos,
his lawyer’s failure to object to the nonunanimous jury
instruction constitutes a failure to exercise reasonable pro-
fessional skill and judgment. The contention conflicts with
Oregon Supreme Court precedent. Under that precedent,
the obligation to exercise reasonable professional skill and
judgment—under either constitution—does not encompass
an obligation to augur an about-face by the United States
Supreme Court. Miller v. Lampert, 340 Or 1, 15-16, 125 P3d
1260 (2006).
In this instance, when petitioner’s case went to the
jury, controlling United States Supreme Court precedent
established that the Sixth and Fourteenth Amendments did
not demand unanimous jury verdicts in criminal cases pros-
ecuted in the state courts. Apodaca v. Oregon, 406 US 404,
92 S Ct 1628, 32 L Ed 2d 184 (1972). That rule of law had
been steady and stable for 43 years. Ramos, 590 US at ___ n
10, 140 S Ct at 1428 n 10 (Alito, J., dissenting) (listing cases
in which the United States Supreme Court declined invita-
tions to overrule Apodaca). Neither Article I, section 11, nor
the Sixth and Fourteenth Amendments, required counsel to
foresee that in five years the Court would decamp from the
path it mapped nearly a half century earlier. Miller, 340 Or
at 16 (“Counsel was not required to anticipate that two years
later the United States Supreme Court would reverse course
in Apprendi [v. New Jersey, 530 US 466, 120 S Ct 2348, 147
L Ed 2d 435 (2000)], interpret the Sixth Amendment and Due
Process Clauses as the dissent had urged in Almendarez-
Torres [v. United States, 523 US 224, 118 S Ct 1219, 140 L Ed
2d 350 (1998)], and read its decision in Almendarez-Torres
as establishing only a narrow exception to the new rule
570 Smith v. Kelly
announced in Apprendi.”); see Ramos, 590 US at ___, 140 S Ct
at 1420 (Kavanaugh, J., concurring) (“[A]s to ineffective-
assistance-of-counsel claims, an attorney presumably would
not have been deficient for failing to raise a constitutional
jury-unanimity argument before today’s decision—or at
the very least, before the Court granted certiorari in this
case.”); see also, e.g., State v. Thompson, 324 So 3d 113, 119
(La Ct App 1st Cir 2021) (rejecting claim that counsel was
ineffective for not raising jury nonunanimity issue before
decision in Ramos).1
Affirmed.
1
Louisiana and Oregon are the only two states that allowed nonunanimous
jury verdicts in felony cases leading up to the decision in Ramos. See Ramos, 590
US at ___, 140 S Ct at 1394.