534
Argued and submitted October 20; convictions on Counts 5 through 12
reversed and remanded, remanded for resentencing, otherwise affirmed
November 18, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
JASON P. HERFURTH,
Defendant-Appellant.
Washington County Circuit Court
C110010CR; A170610
478 P3d 601
For the third time before this court, defendant appeals a judgment of conviction for, among other things, eight counts of second-degree sexual abuse, ORS
163.425 (Counts 5 through 12). For the first time, defendant assigns error to
the trial court’s entry of judgments of conviction based on nonunanimous verdicts on those counts. In response, the state acknowledges that, under Ramos v.
Louisiana, 590 US ___,
140 S Ct 1390,
206 L Ed 2d 583 (2020), the convictions
on those counts were entered in violation of defendant’s constitutional rights
but argues that defendant may not challenge those convictions for the first time
in a successive appeal because of the law-of-the-case doctrine. Held: The trial
court erred in entering judgments of conviction based on nonunanimous verdicts.
Because no appellate court had ruled on defendant’s nonunanimous jury claim,
and given the change in law effected by Ramos, the law-of-the-case doctrine did
not bar review. Further, under State v. Ulery,
366 Or 500,
464 P3d 1123 (2020),
defendant was entitled to reversal of his convictions on Counts 5 through 12.
Convictions on Counts 5 through 12 reversed and remanded; remanded for
resentencing; otherwise affirmed.
Andrew Erwin, Judge.
Morgen E. Daniels, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Timothy A. Sylwester, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
Cite as 307 Or App 534 (2020) 535
LAGESEN, P. J.
Convictions on Counts 5 through 12 reversed and remanded;
remanded for resentencing; otherwise affirmed.
536 State v. Herfurth
LAGESEN, P. J.
Defendant appeals a judgment of conviction for
one count of third-degree rape, ORS 163.355 (Count 3), and
eight counts of second-degree sexual abuse, ORS 163.425
(Counts 5 through 12). Although this is the third time
the matter is before us on appeal—two previous appeals
led to remands for resentencing—defendant for the first
time assigns as error (among other assignments) the trial
court’s entry of judgments of conviction based on nonunanimous verdicts on Counts 5 through 12. As we now know,
the court’s entry of convictions on those verdicts violated
defendant’s jury trial right under the Sixth and Fourteenth
Amendments to the United States Constitution. Ramos v.
Louisiana, 590 US ___,
140 S Ct 1390,
206 L Ed 2d 583
(2020). The state acknowledges that, under Ramos, the convictions on those counts were entered in violation of defendant’s constitutional rights but argues that, having had two
previous appeals, it is now too late for defendant to raise
his Sixth Amendment challenge to his conviction. For the
reasons that follow, we disagree and reverse the challenged
convictions.
The basic premise of the state’s argument is that, to
obtain relief from those convictions, defendant was required
to raise his challenge in his first appeal (even though, at the
time, defendant would not have prevailed on it). In support
of that premise, the state invokes the law-of-the-case doctrine, and points us to several appellate decisions declining
to consider issues raised for the first time in a successive
appeal, when those issues could have been raised in an initial or earlier appeal.
Ordinarily, it is true, we, like other appellate courts,
refrain from considering issues that could have been raised
in an initial appeal but were not. See, e.g., State v. Bowen,
355 Or 469, 473-74,
326 P3d 1162 (2014). This, however, is
not an ordinary situation. The Supreme Court’s decision in
Ramos upended 48 years of precedent holding that the unanimity requirement of the jury trial provision of the Sixth
Amendment was not incorporated against the states. See
Ramos, 590 US at ___,
140 S Ct at 1397-98. For defendant to
have raised the issue any earlier would have been an act of
Cite as
307 Or App 534 (2020) 537
futility, something not in play in the cases to which the state
directs our attention.
Although there are some procedural differences,
this case, in a lot of ways, resembles Rains v. Stayton
Builders Mart, Inc., 289 Or App 672,
410 P3d 336 (2018).
There, the trial court had declined to apply the statutory
cap on noneconomic damages in ORS 31.710(1) to the plaintiffs’ noneconomic damages award, concluding that the cap
violated Article I, section 17, of the Oregon Constitution.
Id. at 675. The defendant appealed, and we reversed. See
id. at 676 (explaining procedural history). The plaintiffs
petitioned for review in the Supreme Court and the Supreme
Court accepted review.
Id. at 677. In the meantime, the
Supreme Court decided Horton v. OHSU,
359 Or 168,
376
P3d 998 (2016), a case that significantly altered the analytic frameworks applicable to questions arising under both
Article I, section 10, and Article I, section 17, of the Oregon
Constitution. Rains,
289 Or App at 677-78 (discussing how
Horton changed the law). The court then remanded Rains to
us for reconsideration of the damages cap issues under the
analysis set forth in Horton.
Id. at 678.
On remand, recognizing that Horton was fatal to
their contention that the damages cap violated Article I,
section 17, the plaintiffs raised a new argument—one that
they had made to the trial court, but had not raised in their
initial appeal: that the damages cap violated Article I, section 10. Id. at 679-80. In response, the defendant argued
that it was too late for the plaintiffs to make that argument because they had not raised it in their initial appeal.
Id. at 679. The defendant contended the argument was
barred by the law-of-the-case doctrine and, alternatively,
that the plaintiffs had waived the argument by not raising
it earlier.
Id.
Rejecting the law-of-the-case argument, we noted
that that doctrine only bars consideration of an issue when
an appellate court previously “has made a binding ‘ruling
or decision’ ” on the issue. Id. at 680-81 (quoting Kennedy
v. Wheeler,
356 Or 518, 524,
341 P3d 728 (2014)). Rejecting
the waiver argument, we looked to the Supreme Court’s
decision in Kentner v. Gulf Ins. Co.,
298 Or 69, 73-74, 689
538 State v. Herfurth
P2d 955 (1984), to identify the considerations that come into
play in evaluating whether to consider an issue that was not
raised at the first available opportunity. Rains,
289 Or App
at 681. We noted that the rule requiring that issues ordinarily be raised in an “original hearing” is to “(1) prevent
a party from appealing in a piecemeal manner, (2) keep a
party from shifting its position, and (3) promote the finality of appellate courts’ decisions and promote judicial efficiency.”
Id. We then concluded that none of those considerations would be undermined by considering the plaintiffs’
late-raised Article I, section 10, argument, in view of the
significant change in legal analysis resulting from Horton.
Id. at 682-83.
As in Rains, the law-of-the-case doctrine does not
bar consideration of defendant’s Sixth Amendment claim
because no appellate court has ruled on that claim in the
context of this case. And, as in Rains, there has been a significant change in the legal landscape. Given the significant change in law effected by Ramos, we do not perceive
defendant’s present challenge to the verdicts as encouraging
piecemeal litigation or undercutting finality or judicial efficiency, and the state has not explained how that might be
the case—let alone how those considerations would outweigh
remedying Oregon’s violation of defendant’s federal constitutional right to have the jury reach unanimous agreement on
his guilt. As noted, had defendant raised the issue any earlier, longstanding case law would have precluded him from
prevailing. Defendant’s decision to raise the issue now has
not resulted in piecemeal litigation because, in each appeal,
defendant has raised other nonfrivolous grounds for appeal.
And, as should be evident, this case has never reached finality. In light of these considerations, we reject the state’s
argument that defendant has raised this issue too late.
Having concluded that it is not too late for defendant to raise the issue, we conclude that defendant is entitled to reversal of his convictions on Counts 5 through 12 for
the reasons stated in the Supreme Court’s decision in State
v. Ulery, 366 Or 500,
464 P3d 1123 (2020). In so doing, we
reiterate the Supreme Court’s point that, where, as here, a
significant change in law has taken place while an appeal
is pending, we reverse because case law requires us to apply
Cite as
307 Or App 534 (2020) 539
“the law at the time of the appellate decision,” not because
the trial court made a mistake in applying then-existing
law. Id. at 503; see also State v. Zavala,
361 Or 377, 380 n 1,
393 P3d 230 (2017) (“When used to describe a trial court’s
ruling that was not erroneous under existing law, the term
‘plain error’ is a misnomer; it does not imply any mistake
by a trial court. Instead, it is a label that an appellate court
uses when it decides that a party is entitled to a benefit of a
change in the law.”).
This disposition obviates the need to address defendant’s other assignments of error, both of which challenge
the trial court’s decision to impose consecutive sentences.1
Convictions on Counts 5 through 12 reversed and
remanded; remanded for resentencing; otherwise affirmed.
1
The jury reached a unanimous verdict as to Count 3, and defendant challenges only the sentence on that count and has not assigned error to the court’s
entry of the conviction.
