State v. Poston

                                        377

        Argued and submitted October 4, 2019, reversed and remanded
                            February 18, 2021


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                  LATRELL EARVIN POSTON,
                      Defendant-Appellant.
                 Multnomah County Circuit Court
                       120431530; A167302
                                  

    Defendant appeals from a judgment entered by the trial court after it resentenced him on six counts of promoting prostitution following a remand from
a previous appeal. Among other contentions, defendant argues that the court
plainly erred in accepting nonunanimous jury verdicts in light of Ramos v.
Louisiana, 

, 

, 

 (2020). The state agrees
that a Ramos-based challenge ordinarily would be reviewable on direct appeal,
but it argues that the Court of Appeals rejected the same unanimity argument in
the earlier appeal (albeit before Ramos was decided) and limited the remand to
sentencing issues. For that reason, the state argues, the law of the case doctrine
and the scope of the remand preclude reversal based on the court’s acceptance
of nonunanimous jury verdicts. Held: The prudential doctrine of law of the case
must give way to the intervening, inconsistent, controlling decision by the United
States Supreme Court, and, in light of that intervening change in the law, defendant’s challenge was not barred by the scope of the remand.
    Reversed and remanded.



    Eric L. Dahlin, Judge.
   Ingrid A. MacFarlane, Deputy 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 argued the cause for respondent.
Also on the brief were Ellen F. Rosenblum, Attorney General,
and Benjamin Gutman, Solicitor General.
    Latrell Poston filed the supplemental brief pro se.
  Before Lagesen, Presiding Judge, and Egan, Chief Judge,
and Powers, Judge.*
______________
   * Egan, C. J., vice Schuman, S. J.
378                        State v. Poston

  POWERS, J.
  Reversed and remanded.
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 (2021)                              379

        POWERS, J.
         In this case, we must chart the outer limits of the
“law of the case” doctrine and address whether that doctrine
or the scope of our prior remand prevents defendant from
challenging the validity of his convictions. We conclude that
the prudential doctrine of law of the case must give way in
this instance to an intervening, inconsistent, controlling
decision by a higher court. We further conclude that consideration of defendant’s challenge is not barred by the scope of
our remand, reach the merits of defendant’s challenge, and
reverse and remand.
         Defendant appeals from a judgment entered by
the trial court after it resentenced him on six counts of
promoting prostitution following our decision in an earlier
appeal, State v. Poston, 

, 

 (2016)
(Poston I), adh’d to on recons, 

, 

(Poston II), rev den, 

 (2017). In that earlier appeal,
defendant challenged convictions on the six counts of promoting prostitution as well as counts of identity theft. He
argued that the court erred in accepting nonunanimous jury
verdicts, and we rejected that argument without discussion,
as we routinely did at that time based on controlling precedent. Poston I, 

. However, defendant also
argued that the indictment was defective in joining all of the
counts, and we agreed with him on that point. We reversed
the convictions for identity theft but ultimately concluded
that the error was harmless with regard to the six counts
of promoting prostitution. We therefore affirmed the convictions on those six counts and remanded for resentencing.
Poston I, 

 (remanding for resentencing on
those counts); Poston II, 

 (adhering to that
disposition).
        In 2018, following our directive, the trial court
resentenced defendant on the six counts of promoting
prostitution. Defendant then appealed the resulting judgment, assigning error to the trial court’s calculation of his
criminal history, its imposition of an aggregate sentence
purportedly violating the “200 percent rule,” its failure to
merge the guilty verdicts, and its failure to consider defendant’s post-sentencing conduct; defendant also filed a pro se
380                                            State v. Poston

assignment of error directed at the prejudice analysis in
Poston I. The state filed an answering brief, arguing that
none of the arguments was well taken.
         Then the sea changed. While his appeal was
pending, the Supreme Court of the United States issued
its decision in Ramos v. Louisiana, 

, 

, 

 (2020), which “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.” State v. Herfurth, 

, 

 (2020). Under Ramos, a trial court’s
entry of judgments of conviction based on nonunanimous
verdicts violates a defendant’s right to a jury trial under
the Sixth and Fourteenth Amendments to the United States
Constitution. 590 US at ___, 

.
         Defendant asked to file a supplemental brief based
on Ramos, and we allowed that request. He then added a
supplemental assignment of error that essentially raised
the same argument that we rejected in his earlier appeal,
viz., that the verdict on each of the counts of promoting
prostitution was nonunanimous and therefore violated his
Sixth Amendment rights. The state does not dispute the
substance of defendant’s argument; in fact, it concedes that
“[d]efendant is correct that the jury’s guilty verdicts on those
counts were not unanimous” and that “to be sure, it is now
established that an unpreserved Ramos-based challenge
to a nonunanimous verdict is reviewable as plain error on
direct appeal and may thereby provide a basis for an appellate court to reverse and remand for a new trial.” The state’s
only argument is this: too late.
         According to the state, this court’s earlier decisions “finally affirmed his convictions” and “[c]onsequently,
well-established principles of ‘law of the case’ and ‘limited
scope of remand’ preclude defendant, in this appeal, following a resentencing-only remand, from now challenging the
validity of his convictions on a ground that he asserted but
this court rejected in his previous appeal.” (Emphasis in
original.)
         We generally agree with the state’s argument that,
as “ ‘a general principle of law and one well recognized in
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 (2021)                                   381

this state,’ ” a decision by an appellate court, although it may
be overruled in other cases, “ ‘is binding and conclusive both
upon the inferior court in any further steps or proceedings
in the same litigation and upon the appellate court itself
in any subsequent appeal or other proceeding for review.’ ”
State v. Pratt, 

, 

 (1993) (quoting
Simmons v. Wash. F. N. Ins. Co., 

, 

 (1932)). That principle, however, is not absolute. As the
Supreme Court has explained, the policies underlying the
general rule are prudential:
      “The policies underlying the doctrine of the ‘law of the
   case’ essentially parallel those served by the doctrines of
   stare decisis and res judicata/preclusion, i.e., consistency of
   judicial decision, putting an end to litigation of matters once
   determined, and preserving the court’s prestige. [Allan D.]
   Vestal, Law of the Case: Single-Suit Preclusion, 1967 Utah
   L Rev 1 (1967). Briefly stated, the doctrine of the law of the
   case precludes relitigation or reconsideration of a point of
   law decided at an earlier stage of the same case. The rationale is that a court should adhere to a previous ruling on
   an identical matter, whether rightly or wrongly decided, in
   order to advance the policies enumerated above.”
Koch v. So. Pac. Transp. Co., 

, 

 (1976) (emphasis omitted); see also Poet v. Thompson,

, 

 (2006) (“Whatever the
context, as the court explained in [Koch], the application of
the doctrine is, ultimately, prudential[.]”).
         In Koch, the Supreme Court, citing Professor Vestal’s
article, observed that “[t]here is no uniformity among the
jurisdictions either in the stages at which the doctrine is
given effect or in the rigidity with which it is applied,” 

. Importantly, however, Vestal proceeded to identify one area where there was little room for disagreement:
the well-established exception in the case of “intervening,
inconsistent, controlling authority.” 1967 Utah L Rev at 6.
As Vestal explains:
       “One of the recurring problems is that which arises
   when a determination has been made by a court and this
   is followed by an apparently contrary determination by
   a higher, controlling court, which does not actually overrule the first decision because it involves different persons.
382                                                          State v. Poston

    When the first suit continues, does the earlier—now seemingly incorrect—determination control? An example of this
    might be a case in which a question has been determined
    by a state supreme court and remanded to the trial court
    for further proceedings. If the United States Supreme
    Court considers this question in other litigation and holds
    contrary to the state supreme court, should the trial court
    proceed to try the matter under the mandate which now
    seems to be incorrect? The waste of judicial manpower is
    obvious.”

 He then proceeded to discuss federal and state cases
that “accepted this exception to ‘law of the case.’ ” Id. at 8
(explaining that “controlling authority” is a higher court
directly in line in the hierarchy of judicial power—in “the
case of a state trial court applying the ‘law of the case’ established by an intermediate appellate court, the higher controlling authority would be the state supreme court or the
Supreme Court of the United States”).1
          Oregon is among the states that have recognized
the well-established exception for an intervening, inconsistent, controlling change in law. In Morley v. Morley, 

, 

 (1976), we explained that “[a]
change of law or change of facts since the prior adjudication
does not negate the applicability of res judicata; but such a
change can be a compelling basis to negate the applicability
of law of the case.” And in State v. Metz, 

,

 (1999), rev den, 

 (2000), we held that
     1
       Courts have continued to recognize this common-sense exception in the
years following Vestal’s article, explaining that it presents the most straightforward and obvious case for disregarding an earlier decision. See, e.g., Roberson
v. Perez, 156 Wash 2d 33, 43, 

 (2005) (explaining that “[a]n appellate court’s discretion to disregard the law of the case doctrine is at its apex
when there has been a subsequent change in controlling precedent on appeal”);
People v. Stanley, 10 Cal 4th 764, 787, 

 (1995), cert den, 

 (1996) (“[T]he doctrine will not be adhered to where … the controlling
rules of law have been altered or clarified by a decision intervening between the
first and second appellate determinations.”); see also Ellis v. United States, 

 (1st Cir 2002) (recognizing the established exception to “law of the
case” where intervening controlling authority makes reconsideration appropriate); Hegler v. Borg, 

 (9th Cir 1995) (same); 18 B Wright and
Miller’s Federal Practice and Procedure § 4478 (2d ed Oct 2020 Update) (“Perhaps
the most obvious justifications for departing from the law of the case arise when
there has been an intervening change of law outside the confines of the particular case. The easiest cases occur when the law has been changed by a body with
greater authority on the issue ….”).
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“[t]he law of the case doctrine is essentially one of judicial
economy and judicial discretion,” and that “[d]efendant
offers no cogent reason why this doctrine should be extended
to preclude courts from recognizing and applying newly
enacted laws, and we are aware of none.” In so holding, we
cited cases from other jurisdictions to the effect that “there
is an exception to the law of the case doctrine if there has
been a change in the controlling law between the first and
second appeal.” Id. at 718; see also State v. Osborne, 

, 

 (1986) (observing that “changes
in the law or in the facts since the prior ruling can negate”
application of law of the case).
         Those precedents fit within the broader tapestry of
Oregon’s approach to the doctrine of law of the case, which
is prudential in nature rather than blind to justice. In Marr
et al v. Putnam et al, 

, 

 (1958),
the Supreme Court opined that “a court should not blindly
adhere to a former decision that is manifestly erroneous,”
but that “stability of the law requires that there be very
cogent reasons for abandoning a former decision, particularly when it was between the same parties and on the same
pleadings.” An intervening, inconsistent, controlling decision by a higher court is unquestionably a cogent reason to
depart from an earlier decision in the same case, if not an
obligatory one under certain circumstances.2
         Ramos qualifies as that type of intervening and
controlling decision, as we recently discussed in Herfurth. In
Herfurth, the defendant raised jury unanimity arguments
that could have been raised in an earlier appeal but were
not. The state argued, as it does in this appeal, that, notwithstanding the court’s intervening decision in Ramos, we

    2
      Because of the timing of the Ramos decision, this issue was not raised in
the trial court and is now presented as a claim of plain error—one that we have
discretion to entertain under our rules of appellate procedure. Under different
circumstances—for instance, if we had rejected a claim of error based on a jury
unanimity instruction but remanded for a retrial, a trial court and this court
could not continue to rely, post-Ramos, on previous decisions of this court to
approve a less than unanimous verdict on retrial. The rule announced in Ramos
applies to all cases now on appeal—regardless of whether the trial occurred
before or after Ramos. See State v. Flores Ramos, 

, 

 (2020) (holding that Ramos applies to all cases still on direct appeal (citing
Griffith v. Kentucky, 

, 

, 

 (1987))).
384                                              State v. Poston

should reject the defendant’s arguments based on law of the
case; alternatively, it argued that we should reject the argument based on waiver principles. We disagreed, explaining
that the law of the case doctrine bars consideration of an
issue only when an appellate court has previously made a
binding ruling or decision on the same issue, which had not
happened in that case. But then, addressing the argument
that the defendant had waived the issue by not raising it
earlier, we discussed some of the same prudential concerns
that underlie the law of the case doctrine:
   “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.”

Herfurth, 

.
         Although this case presents a slightly different procedural wrinkle—the issue was presented and decided in an
earlier appeal—our observations in Herfurth about prudential considerations are equally apt, if not more so. Defendant
has not taken a piecemeal approach; he raised this challenge in his first appeal but, because of controlling United
States Supreme Court authority, we rejected it. Here, as
in Herfurth, we do not perceive how consideration of defendant’s argument at this stage of his direct appeal undercuts
the prudential considerations underlying the doctrine of law
of the case. As Judge Learned Hand explained, the law of
the case doctrine “does not rigidly bind a court to its former decisions, but is only addressed to its good sense. There
can surely be no greater reason for changing our views than
because the Supreme Court has directly ruled upon the
precise point in the interim.” Higgins v. California Prune
& Apricot Grower, Inc., 3 F2d 896, 898 (2d Cir 1924) (citations omitted). We therefore reject the state’s contention that
“law of the case” precludes our consideration of defendant’s
supplemental assignment of error based on the significant
change in the law that resulted from Ramos.
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         We likewise reject the state’s argument that our
review is precluded by the “scope of the remand.” That argument is predicated on the Supreme Court’s analysis in State
v. Bowen, 

, 

 (2014). In Bowen,
the defendant argued that the Supreme Court’s disposition
in an earlier appeal had violated a statute that was in effect
at the time, such that “the trial court erred by following
the terms of [the] court’s remand, rather than resentencing
defendant as [the] court should have ordered.” 

.
In rejecting that argument, the Supreme Court stated:
       “We agree with the state that defendant may not now
   take issue with our disposition in [the previous appeal] by
   predicating his claim of error on the trial court’s adherence
   to the terms of our limited remand. As the state accurately
   points out, defendant assigns error to the trial court’s failure to resentence him, but the argument that defendant
   makes in support of that claim is not that the trial court
   erred. Rather, defendant’s argument is that this court erred
   when it failed to order resentencing on remand in [the previous appeal] and ordered, instead, that the trial court correct the judgment in a specified way. Defendant does not
   dispute that the trial court did exactly as our opinion—and
   later, our corresponding appellate judgment—directed the
   trial court to do. A claim of trial court error simply cannot be predicated on the trial court having done what this
   court ordered it to do.”

 (emphasis omitted). According to the state, the
same can be said here: Error cannot be predicated on the
trial court resentencing defendant after this court remanded
for that limited purpose only.
         Bowen is readily distinguishable. It did not involve
an intervening change in the law but rather a party’s failure
to raise a claim under existing law “in a timely and procedurally proper way.” 

. Here, by contrast, defendant
raised a jury unanimity argument in an earlier appeal and
again at the first available opportunity after Ramos was
decided. In this context—a timely and procedurally proper
argument that the trial court plainly erred based on an
intervening change in law—the claim of error can be predicated on the trial court doing exactly what it was directed to
do on remand. As the Supreme Court has explained, and as
386                                           State v. Poston

we observed in Herfurth, the term “plain error” is something
of a misnomer where there has been an intervening change
in the law. 

-39 (citing State v. Zavala, 

, 380 n 1, 

 (2017)). Where there has been
an intervening change in the law, the use of the term “plain
error” is not to imply that the trial court made a mistake;
rather, “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.” Zavala, 

 n 1. Therefore, the question
before us is not, as the state’s argument frames it, whether
the trial court erred in following our remand. The question is
whether the court, by entering judgment on nonunanimous
verdicts, violated defendant’s Sixth Amendment rights as
recognized in Ramos. Thus, we reject the state’s argument
that our consideration of defendant’s supplemental assignment of error is barred by the “scope of the remand.” Accord
State v. Horner, 

, 

 (2021) (reversing convictions based on nonunanimous jury verdicts in
subsequent appeal after remand for resentencing).
         Turning to the merits of that supplemental assignment of error, we agree with defendant that the court’s entry
of judgment based on nonunanimous jury verdicts on six
counts of promoting prostitution was plainly erroneous and
requires reversal. The verdict on one of the counts was 11-1,
and the verdicts on the rest were 10-2. In light of Ramos, it
is “clear that all convictions for serious offenses that were
based on nonunanimous verdicts involved constitutional
error—a violation of the defendant’s Sixth Amendment right
to jury unanimity.” State v. Flores Ramos, 

,

 (2020). And, furthermore, the Supreme Court
has concluded that “the nature of the error in this case is
such that an appellate court ordinarily should review it.”
State v. Ulery, 

, 

 (2020). For
the reasons expressed in Ulery, we exercise our discretion to
reverse and remand defendant’s convictions for promoting
prostitution. That disposition obviates the need to address
defendant’s remaining assignments of error.
        Reversed and remanded.