State v. Lopez

                                    211

 Submitted September 24, 2020, affirmed March 24, petition for review denied
                         July 29, 2021 (

)


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                   REYES CARILLO LOPEZ,
                      Defendant-Appellant.
                  Malheur County Circuit Court
                      18CR25705; A170029
                               

   Lung S. Hung, Judge.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, Office of Public Defense Services, filed the brief for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Doug M. Petrina, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
   PER CURIAM
   Affirmed.
212                                           State v. Lopez

        PER CURIAM
         Defendant was found guilty by jury verdict of one
count of first-degree sexual abuse, ORS 163.427 (Count 1);
and one count of first-degree unlawful sexual penetration,
ORS 163.411 (Count 2). The verdict on an additional count of
first-degree unlawful sexual penetration was merged with
the verdict on two other counts in the judgment of conviction. On appeal, in three assignments of error, defendant
claims the trial court erred by (1) instructing the jury that
it may return nonunanimous verdicts; (2) imposing post-prison supervision (PPS) of 120 months, less time actually
served, for Count 1; and (3) imposing PPS of 100 years for
Count 2.
         In the first assignment of error, defendant asserts
that instructing the jury that it could return nonunanimous
verdicts constituted a structural error requiring reversal. After the United States Supreme Court ruled against
nonunanimous jury verdicts for serious offenses in Ramos
v. Louisiana, 

, 

, 

(2020), the Oregon Supreme Court explained that providing
a nonunanimous jury instruction was not a structural error
that categorically requires reversal in every case. State v.
Flores Ramos, 

, 

 (2020). As this
issue was not preserved and no jury poll was conducted, we
decline to exercise our discretion to review the nonunanimous jury instruction here for plain error. State v. Dilallo,

, 

 (2020) (explaining that
plain error review for nonunanimous jury instructions without an accompanying jury poll is “contrary to the basic goal
of procedural fairness … that motivates the preservation
requirement”).
          In the second assignment of error, with respect to
Count 1, defendant argues that the PPS sentence of 120
months, minus time actually served, created an unlawful indeterminate PPS term. He relies on State v. Young,

, 

 (2012), for that proposition.
Defendant’s argument fails, however, because Young and the
cases on which it relied did not involve ORS 144.103(1). See,
e.g., State v. Chavez-Reyes, 

, 

(2020) (noting the difference between standard determinate
Cite as 

 (2021)                                                213

PPS terms and indeterminate PPS terms required by ORS
144.103); State v. Burch, 

, 

(1995) (explaining the nature of the PPS term required
under ORS 144.103). We therefore reject the second assignment of error.
        In the third assignment of error, defendant claims
that the PPS term of 100 years for Count 2 is unlawfully
excessive. While this appeal was pending, the trial court
amended the PPS term for Count 2 to life, rather than 100
years. Because this PPS term now conforms with the statutory requirement found in ORS 144.103(2)(a), we reject the
third assignment without further written discussion.1
           Affirmed.




    1
      ORS 144.103(2)(a) provides that a “person sentenced to a term of imprisonment for [first-degree unlawful sexual penetration with a victim under 12 years
of age (ORS 163.411(1)(b))] shall serve a term of post-prison supervision that continues for the rest of the person’s life[.]”