304 Or. App. 845 - State v. Roberts

                                     845

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) withdrawn; conviction on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   Reconsideration allowed; former disposition withdrawn;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 opinion. 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 concluded 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 constituted 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 constituted 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 nonunanimous 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 withdrawn; conviction on Count 1, first-degree rape, reversed and
remanded; remanded for resentencing; otherwise affirmed.