State v. Manns

Argued and submitted March 9; convictions on Counts 1 and 2 reversed and remanded, otherwise affirmed April 7, 2021

STATE OF OREGON,

Plaintiff-Respondent, v. RANDY DEAN MANNS, Defendant-Appellant.

Lincoln County Circuit Court

18CR26628; A170360

484 P3d 1132 Sheryl Bachart, Judge.

Lindsey Burrows argued the cause for appellant. Also on the briefs was O’Connor Weber LLC.

Jonathan N. Schildt, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.

PER CURIAM Convictions on Counts 1 and 2 reversed and remanded; otherwise affirmed.

Cite as 310 Or App 574 (2021) 575

PER CURIAM Defendant was convicted after a jury trial of one count of burglary in the first degree (Count 1), ORS 164.225, and one count of theft in the first degree (Count 2), ORS 164.055.1 The jury returned nonunanimous verdicts on both counts. On appeal, defendant first assigns error to the trial court’s denial of his motion to dismiss the indictment based on double jeopardy. We reject that assignment of error with- out discussion.

In his second and third assignments of error, defen- dant contends—and the state concedes—that the trial court plainly erred in instructing the jury that it could find defen- dant guilty by a 10-2 verdict and in receiving nonunan- imous verdicts on Counts 1 and 2. We agree and accept the state’s concession. After defendant filed his opening brief, the United States Supreme Court decided Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020), holding that the Sixth Amendment requires unan- imous verdicts for convictions. Then, in State v. Ulery, 366 Or 500, 464 P3d 1123 (2020), the Oregon Supreme Court concluded that acceptance of a nonunanimous verdict meets the requirements for plain-error review, and the court exer- cised its discretion to correct the error. Accordingly, for the reasons articulated in Ulery, we exercise our discretion to correct the error here.

Convictions on Counts 1 and 2 reversed and remanded; otherwise affirmed.