State v. Oxford

                                      184

    On appellant’s petition for reconsideration filed June 29, reconsideration
allowed, former opinion (

, 

) withdrawn; reversed and
                           remanded October 7, 2020


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                       NATHAN OXFORD,
                    aka Nathan Daniel Oxford,
                       Defendant-Appellant.
                  Multnomah County Circuit Court
                        140230856; A161408
                                   

    Defendant, who was convicted of various sex crimes, seeks reconsideration
of this court’s decision in State v. Oxford, 

, 

 (2020).
That opinion rejected, among other contentions, defendant’s argument that his
nonunanimous jury verdicts were unconstitutional. On reconsideration, defendant asserts, and the state concedes, that all of his convictions were based on
nonunanimous jury verdicts and plainly violate the Sixth Amendment under the
rationale of Ramos v. Louisiana, 

, 

, 

(2020). Held: In light of State v. Ulery, 

, 

 (2020), the
trial court plainly erred in accepting nonunanimous jury verdicts. The Court of
Appeals exercised its discretion to correct that error.
    Reconsideration allowed; former opinion withdrawn; reversed and remanded.



    Kathleen M. Dailey, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Erik Blumenthal, Deputy Public Defender,
Office of Public Defense Services, for petition.
  Before Ortega, Presiding Judge, and Egan, Chief Judge,
and Powers, Judge.
    PER CURIAM
   Reconsideration allowed; former opinion withdrawn;
reversed and remanded.
Cite as 

 (2020)                            185

        PER CURIAM
         Defendant, who was convicted of two counts of first-degree sodomy, five counts of first-degree sexual abuse, and
five counts of second-degree sodomy, moves for relief from
default and seeks reconsideration of our decision in State v.
Oxford, 

, 

 (2020). As explained
below, we grant relief from default, grant reconsideration,
withdraw our former opinion and disposition, and reverse
and remand defendant’s convictions in light of Ramos v.
Louisiana, 

, 

, 

 (2020).
         Our prior opinion, which was issued prior to the
Ramos decision, addressed and rejected defendant’s argument that the trial court erred in denying his motion for
mistrial and rejected his other arguments, including an
argument that the nonunanimous jury verdicts were unconstitutional, without discussion. Oxford, 

.
On reconsideration, defendant asserts, and the state concedes, that all of his convictions were based on nonunanimous jury verdicts and violate the Sixth Amendment to the
United States Constitution under the rationale of Ramos.
Defendant further asserts that acceptance of the nonunanimous verdicts constituted plain error. In State v. Ulery, 

, 

 (2020), the Oregon Supreme Court
concluded that a trial court’s acceptance of a nonunanimous
verdict constituted plain error and exercised its 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 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.
         In addition to the petition for reconsideration, the
parties have filed a joint motion for summary disposition
of this case by unpublished order pursuant to ORAP 10.35.
We conclude that disposition by way of ORAP 10.35 is not
appropriate in this case, given that our disposition requires
the withdrawal of a prior published opinion. Accordingly,
the parties’ joint motion for summary disposition is denied.
However, in light of the parties’ agreement that summary
disposition is appropriate here, this court will waive the
186                                        State v. Oxford

provisions of ORAP 14.05 concerning the date of issuance
of the appellate judgment, and order judgment to be issued
immediately. See ORAP 1.20(5) (court may waive any ORAP
on own motion for good cause).
        Reconsideration allowed; former opinion withdrawn;
reversed and remanded.