State v. McCovey

472 P.3d 306, 306 Or. App. 282

• Court: Court of Appeals of Oregon
• Decided: August 26, 2020
• Docket: A170848
• Status: Published

Opinion

Submitted July 2, reversed and remanded August 26, 2020

STATE OF OREGON, Plaintiff-Respondent, v. LILA LARAE McCOVEY, Defendant-Appellant. Coos County Circuit Court 18CR59542; A170848 472 P3d 306

Martin E. Stone, Judge. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Joshua B. Crowther, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Colm Moore, Assistant Attorney General, filed the brief for respondent. Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge. PER CURIAM Reversed and remanded. Cite as 306 Or App 282 (2020) 283

PER CURIAM Defendant was convicted of unlawful possession of methamphetamine, ORS 475.894, following a nonunan- imous jury verdict. On appeal, defendant contends that the trial court plainly erred when it instructed the jury that it could reach a nonunanimous verdict and in accepting the nonunanimous verdict. The state concedes that the court erred and that we should exercise our discretion to correct it. We agree with the parties. In Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020), the United States Supreme Court concluded that nonunanimous jury verdicts violated the Sixth Amendment. In State v Ulery, 366 Or 500, 464 P3d 1123 (2020), the Oregon Supreme Court concluded that a trial court’s acceptance of a nonunanimous verdict constituted plain error and exercised discretion to correct that error in light of the gravity of the error and because failure to raise the error in the trial court did not weigh heavily against its correction as the trial court would not have been able to correct the error under controlling law. For the reasons set forth in Ulery, we exercise our discretion to correct the error in this case. Reversed and remanded.