State v. Howie

                                  151

 Submitted October 19, 2020; conviction on Count 2 reversed and remanded,
     remanded for resentencing, otherwise affirmed February 3, 2021


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                   DENNIS RAY HOWIE,
                    Defendant-Appellant.
               Multnomah County Circuit Court
                    17CR09383; A167487
                               

   Cheryl A. Albrecht, Judge.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Shawn Wiley, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant. Dennis
Ray Howie filed the supplemental and reply briefs pro se.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jonathan N. Schildt, Assistant
Attorney General, filed the brief for respondent.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
   PER CURIAM
   Conviction on Count 2 reversed and remanded; remanded
for resentencing; otherwise affirmed.
152                                          State v. Howie

        PER CURIAM
         Defendant was found guilty by jury verdict on one
count of first-degree assault (Count 2), ORS 163.185, and
one count of felon in possession of a firearm (Count 3), ORS
166.270. The jury was unanimous as to Count 3, but it was
not unanimous as to Count 2. Defendant argues on appeal
that the trial court erred in numerous respects at trial
and erred in imposing the sentence on Count 2. We reject
without discussion all of defendant’s arguments concerning
trial except his argument that the court plainly erred in
instructing the jury that it need not reach unanimous verdicts. The state concedes that defendant’s conviction based
on the nonunanimous verdict must be reversed in light of
Ramos v. Louisiana, 

, 

, 

 (2020). We agree and accept the concession, and we
exercise discretion to correct the error for the reasons set
forth in State v. Ulery, 

, 

 (2020).
Our reversal of defendant’s conviction on Count 2 obviates
the need to consider his challenge to his sentence on that
count. Defendant also argues that his conviction by unanimous verdict on Count 3 should be reversed based on the
erroneous nonunanimous verdict instruction. We reject that
argument for the reasons set forth in State v. Flores Ramos,

, 

 (2020), and State v. Kincheloe, 

, 

 (2020), in which the court concluded
that the erroneous nonunanimous jury instructions were
harmless with respect to unanimous verdicts.
       Conviction on Count 2 reversed and remanded;
remanded for resentencing; otherwise affirmed.