State v. Horner

                                      136

    On appellant’s petition for reconsideration filed September 23, 2020;
   reconsideration allowed, former disposition (

, 

)
  withdrawn, convictions on Counts 8, 10, 11, and 12 reversed and remanded,
       remanded for resentencing, otherwise affirmed February 3, 2021


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                    JEREMY LANCE HORNER,
                       Defendant-Appellant.
                     Lane County Circuit Court
                       201204868; A162293
                                   

    Defendant appeals a judgment of conviction for 26 crimes. Most of the jury
verdicts were unanimous, however, four were not. In State v. Horner, 

, 

 (2020), the Court of Appeals rejected defendant’s challenge to
his sentences. Defendant then petitioned for reconsideration in light of the United
States Supreme Court’s ruling in Ramos v. Louisiana, 

, 

,

 (2020), which held that nonunanimous jury verdicts violated
the Sixth Amendment to the United States Constitution. Defendant argues that,
because the trial court instructed the jury that nonunanimous verdicts were
permissible, all of his convictions must be reversed based on structural error.
Alternatively, he argues that the four counts receiving nonunanimous verdicts
must be reversed as plainly erroneous. Held: Even though the nonunanimous
jury instruction was erroneous in light of Ramos, the error was not structural,
and, with respect to each count receiving a unanimous verdict, such error was
harmless beyond a reasonable doubt. State v. Ciraulo, 

, 

 (2020). However, in light of State v. Kincheloe, 

, 

(2020), the trial court plainly erred by accepting nonunanimous verdicts for four
counts.
    Reconsideration allowed; former disposition withdrawn; convictions on
Counts 8, 10, 11, and 12 reversed and remanded; remanded for resentencing;
otherwise affirmed.



    Charles D. Carlson, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and David O. Ferry, Deputy Public Defender, Office
of Public Defense Services, for petition.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Susan G. Howe, Assistant Attorney
General, for response.
Cite as 

 (2021)                        137

  Before DeHoog, Presiding Judge, and Aoyagi, Judge, and
Hadlock, Judge pro tempore.
  HADLOCK, J. pro tempore.
   Reconsideration allowed; former disposition withdrawn;
convictions on Counts 8, 10, 11, and 12 reversed and
remanded; remanded for resentencing; otherwise affirmed.
138                                         State v. Horner

        HADLOCK, J. pro tempore
         Defendant was convicted of 26 crimes (some felonies and some misdemeanors), and he received a decadeslong sentence. See State v. Horner, 

,

 (2015), rev den, 

 (2016). In defendant’s initial appeal, we rejected challenges to his convictions but remanded for resentencing. Id. at 358, 371. After
resentencing, defendant again appealed, arguing that his
sentences were unconstitutionally disproportionate, both
individually and in the aggregate. See State v. Horner, 

, 

 (2020). After we issued
an opinion rejecting those arguments, defendant petitioned
for reconsideration, seeking to challenge his convictions on
two new grounds, both based on the United States Supreme
Court’s holding in Ramos v. Louisiana, 

, 

, 

 (2020), that nonunanimous jury
verdicts violated the Sixth Amendment to the United States
Constitution.
         In supplemental briefing associated with his petition for reconsideration, defendant acknowledges that the
verdicts for most of his convictions were unanimous, but he
points out that the verdicts on Counts 8, 10, 11, and 12—
each a conviction for the Class A misdemeanor of reckless
endangerment—were not unanimous. In his supplemental
brief, defendant first assigns error to the trial court having instructed the jury that it could return nonunanimous
guilty verdicts. Defendant contends that the erroneous jury
instruction constitutes structural error and that the error
was not harmless, even with respect to the unanimous verdicts. In a second supplemental assignment of error, defendant argues that, even if we reject his first argument, the
convictions on Counts 8, 10, 11, and 12 by nonunanimous
verdict must be reversed as plainly erroneous under Ramos.
In its own supplemental brief, the state expresses disagreement with defendant’s first assignment of error, but it concedes that the trial court plainly erred by accepting the
nonunanimous verdicts on Counts 8, 10, 11, and 12.
        We grant the petition for reconsideration and allow
the supplemental briefing for the reasons set forth in State
v. Roberts, 

, 

 (2020).
Cite as 

 (2021)                                                139

Defendant’s first supplemental assignment of error fails
under State v. Ciraulo, 

, 

 (2020)
(with respect to unanimous verdicts, rejecting argument
that reversal was required because jury instruction permitting nonunanimous verdicts was structural error and not
harmless). However, the argument that defendant makes in
his second supplemental assignment of error is correct. The
trial court plainly erred when it accepted nonunanimous
verdicts on Counts 8, 10, 11, and 12. See State v. Kincheloe,

, 

 (2020) (holding that “receipt of
a nonunanimous guilty verdict for a nonpetty offense constitutes plain error in light of Ramos” (citing State v. Ulery, 

, 

 (2020))); State v. Wollam, 

, 

 (2020) (Ramos applies to Class A
misdemeanors). For the reasons we have done so in Roberts
and other analogous cases, we exercise our discretion to correct that error.
        Reconsideration allowed; former disposition withdrawn; convictions on Counts 8, 10, 11, and 12 reversed and
remanded; remanded for resentencing; otherwise affirmed.1




     1
       We remand pursuant to former ORS 138.222(5)(b) (2015), repealed by
Or Laws 2017, ch 529, § 26, which provided that remand for resentencing on
affirmed counts is required “[i]f the appellate court, in a case involving multiple
counts of which at least one is a felony, reverses the judgment of conviction on
any count and affirms other counts[.]” Former ORS 138.222(5)(b) (2015) applies
because the judgment on appeal was entered before January 1, 2018, the effective
date of the legislation that repealed the statute.