State v. Mailman

480 P.3d 339, 309 Or. App. 158

• Court: Court of Appeals of Oregon
• Decided: February 3, 2021
• Docket: A162173
• Status: Published

Opinion

On appellant’s petition for reconsideration filed March 26, 2020; reconsideration allowed, former opinion (303 Or App 101, 463 P3d 20) modified and adhered to as modified February 3, 2021

STATE OF OREGON, Plaintiff-Respondent, v. ANTHONY MORGAN MAILMAN, Defendant-Appellant. Union County Circuit Court M21794; A162173 480 P3d 339

Russell B. West, Judge. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Erin J. Snyder Severe, Deputy Public Defender, Office of Public Defense Services, for petition. Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge. PER CURIAM Reconsideration allowed; former opinion modified and adhered to as modified. Cite as 309 Or App 158 (2021) 159

PER CURIAM Defendant has petitioned for reconsideration of our opinion in State v. Mailman, 303 Or App 101, 463 P3d 20 (2020). In our original opinion, we neglected to rule on the assignments of error raised in defendant’s supplemen- tal brief, wherein defendant challenged the trial court’s instruction that the jury could reach a nonunanimous ver- dict. Defendant filed a petition for reconsideration, asking us to address his supplemental assignments of error. We held our decision pending resolution of Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020), as well as cases subsequently taken under advisement by the Oregon Supreme Court that presented Ramos issues. Those cases have now issued, and one of them, State v. Dilallo, 367 Or 340, 478 P3d 509 (2020), is controlling. At trial, defendant did not object to the instruction, nor was the jury polled. Accordingly, we reject defendant’s unpreserved argument in light of Dilallo. Reconsideration allowed; former opinion modified and adhered to as modified.