307 Or. App. 834 - State v. Paluda

                                   834

Submitted October 29; in Case No. 18CR08523, conviction on Count 1 reversed
 and remanded, remanded for resentencing, otherwise affirmed; in Case No.
18CR42276, convictions on Counts 3 and 5 reversed and remanded, remanded
          for resentencing, otherwise affirmed December 9, 2020


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
               PATRICK MICHAEL PALUDA,
                    Defendant-Appellant.
               Washington County Circuit Court
                  18CR42276, 18CR08523;
                 A169750 (Control), A169748

479 P3d 345



   Janelle F. Wipper, Judge.
   Bear Wilner-Nugent filed the briefs for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patrick M. Ebbett, Assistant Attorney
General, filed the brief for respondent.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
   PER CURIAM
   In Case No. 18CR08523, conviction on Count 1 reversed
and remanded; remanded for resentencing; otherwise
affirmed. In Case No. 18CR42276, convictions on Counts 3
and 5 reversed and remanded; remanded for resentencing;
otherwise affirmed.
Cite as

307 Or App 834

 (2020)                                         835

         PER CURIAM
         Defendant appeals judgments of conviction in two
consolidated domestic violence cases. In Case No. 18CR08523,
defendant was convicted by nonunanimous jury verdict of
assault in the fourth degree constituting domestic violence,
ORS 163.160 and ORS 132.586 (Count 1), and harassment,
ORS 166.065 (Count 2). In Case No. 18CR42276, defendant
was convicted by nonunanimous jury verdict of assault
in the second degree constituting domestic violence, ORS
163.175 and ORS 132.586 (Count 3), and strangulation, ORS
163.187 (Count 5).1 Defendant contends that the trial court
plainly erred under the Sixth Amendment to the United
States Constitution when it entered judgments of conviction
based on nonunanimous jury verdicts.
         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, 501

464 P3d 1123

(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 because the trial court would not have
been able to correct the error under controlling law.
The state concedes that the trial court’s acceptance
of nonunanimous verdicts in these cases constitutes reversible error as to Count 1 in Case No. 18CR08523 and Counts
3 and 5 in Case No. 18CR42276. The state does not concede
that defendant’s conviction for harassment (Count 2 in Case
No. 18CR08523) should be reversed because, it argues, the
maximum penalty for that offense, a Class B misdemeanor,
is six months’ imprisonment, and the Sixth Amendment
jury-trial right does not apply to such offenses. In response to
the state’s argument, defendant concedes, given his failure
to preserve an argument to the contrary, that the harassment count is subject to the Sixth Amendment’s pettyoffense exception, and that his conviction on that count may

1
Defendant was also convicted of other crimes in Case No. 18CR42276 but
does not challenge those convictions in this appeal.
836 State v. Paluda

therefore stand. We accept the parties’ concessions and, for
the reasons set forth in Ulery, we exercise our discretion to
correct the error.
In Case No. 18CR08523, conviction on Count 1
reversed and remanded; remanded for resentencing; otherwise affirmed. In Case No. 18CR42276, convictions on
Counts 3 and 5 reversed and remanded; remanded for resentencing; otherwise affirmed.