State v. Roberts

468 P.3d 1039, 304 Or. App. 845

• Court: Court of Appeals of Oregon
• Decided: June 17, 2020
• Docket: A168253
• Status: Published

Opinion

On appellant’s petition for reconsideration filed May 4; reconsideration allowed; former disposition (303 Or App 176, 460 P3d 130) withdrawn; conviction on Count 1, first-degree rape, reversed and remanded; remanded for resentencing; otherwise affirmed June 17, 2020

STATE OF OREGON, Plaintiff-Respondent, v. STEVEN LAMAR ROBERTS, Defendant-Appellant. Multnomah County Circuit Court 130733183; A168253 468 P3d 1039

Cheryl A. Albrecht, Judge. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Andrew D. Robinson, Deputy Public Defender, Office of Public Defense Services, for petition. Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge. PER CURIAM Reconsideration allowed; former disposition withdrawn; conviction on Count 1, first-degree rape, reversed and remanded; remanded for resentencing; otherwise affirmed. 846 State v. Roberts

PER CURIAM

Defendant was convicted on one count each of first- degree rape, first-degree sodomy, and incest. In a prior appeal, we remanded the case to the trial court to conduct OEC 403 balancing with respect to certain evidence. State v. Roberts, 288 Or App 145, 406 P3d 117 (2017). The court did so and subsequently re-entered those convictions. In the present appeal, defendant argued that the court again had erred under OEC 403, and this court affirmed without opin- ion. State v. Roberts, 303 Or App 176, 460 P3d 130 (2020). Defendant seeks reconsideration to add an assignment of error that the jury’s verdict on the first-degree rape count was not unanimous, and seeks reversal of that conviction based on Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020), in which the Court recently con- cluded that nonunanimous jury verdicts violated the Sixth Amendment. In State v. Ulery, 366 Or 500, 504, 464 P3d 1123 (2020), the Oregon Supreme Court concluded that a trial court’s acceptance of a nonunanimous verdict consti- tuted plain error and exercised discretion to correct that error in light of the gravity of the error and because failure to raise the issue in the trial court did not weigh heavily against correction of the error because the trial court would not have been able to correct it under controlling law.

As a general matter, an assignment of error must be asserted in a party’s opening brief. ORAP 5.45(1). However, in State v. Williams, 366 Or 495, 466 P3d 55 (2020), the court explained that this rule may be waived for “good cause” under ORAP 1.20(5), and it concluded that the significant change in the law announced by the Court in Ramos consti- tuted good cause for waiver of that rule. For the reasons set forth in Williams, we exercise our discretion under ORAP 1.20(5) to waive ORAP 5.45(1) and consider defendant’s additional assignment of error.

We conclude that the court’s receipt of a nonunan- imous verdict on the count of first-degree rape was plain error, and for the reasons set forth in Ulery, we exercise our discretion to correct that error. We reject defendant’s remaining arguments without discussion. Cite as 304 Or App 845 (2020) 847

Reconsideration allowed; former disposition with- drawn; conviction on Count 1, first-degree rape, reversed and remanded; remanded for resentencing; otherwise affirmed.