308 Or. App. 525 - State v. Walker

                                  525

  Submitted December 1, 2020; convictions on Counts 2 and 5 reversed and
 remanded, remanded for resentencing, otherwise affirmed January 13, 2021


                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
           FREDERICK HAROLD WALKER, JR.,
                  Defendant-Appellant.
              Lincoln County Circuit Court
                  18CR07737; A170951

479 P3d 348



  Charles M. Zennaché, Judge.
  Bear Wilner-Nugent filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Rolf C. Moan, Assistant Attorney
General, filed the brief for respondent.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
  PER CURIAM
  Convictions on Counts 2 and 5 reversed and remanded;
remanded for resentencing; otherwise affirmed.
526                                                        State v. Walker

           PER CURIAM
         Defendant was convicted of two counts of seconddegree sexual abuse, ORS 163.425 (Counts 2 and 5), by
nonunanimous jury verdict. He was also convicted of delivery
of methamphetamine to a minor, ORS 475.890(3) (Count 6),
by a unanimous jury verdict.1 Defendant appeals the judgment of conviction regarding Counts 2 and 5, contending
that the trial court erred under the Sixth Amendment to the
United States Constitution when it refused to instruct the
jury that a guilty verdict must be unanimous and that the
trial court plainly erred by entering convictions on Counts 2
and 5 based on the jury’s nonunanimous verdicts. Defendant
asks us to reverse the judgment and remand for retrial as to
Counts 2 and 5 and for resentencing.
         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 because the convictions on
Counts 2 and 5 were not the result of a unanimous verdict,
those convictions should be reversed. We agree and accept
the state’s concession and for the reasons stated in Ulery
exercise our discretion to correct the error.
       Convictions on Counts 2 and 5 reversed and
remanded; remanded for resentencing; otherwise affirmed.




    1
      The jury acquitted defendant of three sexual abuse counts and two methamphetamine delivery counts; on the state’s motion, the trial court dismissed one
count of tampering with a witness. On appeal, defendant has not challenged the
conviction on Count 6.