State v. Tellez-Suarez

                                  354

Submitted September 30, 2020; supplemental judgment reversed, remanded for
             resentencing, otherwise affirmed March 31, 2021


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                 ELISEO TELLEZ-SUAREZ,
                    Defendant-Appellant.
               Washington County Circuit Court
                    18CR20640; A168847
                               

   Oscar Garcia, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Anne Fujita Munsey, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Shannon T. Reel, Assistant Attorney
General, filed the brief for respondent.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Hadlock, Judge pro tempore.
   PER CURIAM
   Supplemental judgment reversed; remanded for resentencing; otherwise affirmed.
Cite as 

 (2021)                              355

        PER CURIAM
         Defendant was found guilty by unanimous jury verdict on two counts of first-degree criminal mistreatment,
ORS 163.205, and two counts of third-degree assault, ORS
163.165(2)(a). In five assignments of error, defendant claims
that the trial court plainly erred by (1) giving a jury instruction regarding the mens rea required for the physical injury
element for both the assault and criminal mistreatment
charges, (2) giving jury instructions allowing nonunanimous
verdicts, (3) accepting the jury’s verdicts after the nonunanimous instructions, and (4) imposing restitution payable to a
party who is not a victim. In the fifth assignment, defendant
argues that the court erred by denying eligibility for alternative incarceration programs in the written judgment.
        We reject without written discussion the first assignment of error.
         Defendant’s second and third assignments are foreclosed by decisions by the Oregon Supreme Court. After the
United States Supreme Court ruled against nonunanimous
jury verdicts for serious offenses in Ramos v. Louisiana, 

, 

, 

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

, 

 (2020). Additionally, when, as here, the jury’s verdicts were unanimous despite the nonunanimous instruction, such erroneous instruction was “harmless beyond a
reasonable doubt.” State v. Ciraulo, 

, 

 (2020); see also State v. Chorney-Phillips, 

, 

 (2020) (declining to exercise discretion to review as plain error an unpreserved nonunanimous
instruction when the verdict was unanimous).
         In his fourth assignment of error, defendant asserts
that the trial court plainly erred by ordering restitution of
$1,657 to Kaiser Permanente. The state concedes the restitution was impermissibly awarded under the applicable
statutes and case law. We agree and accept the concession.
See State v. White, 

, 167-68, 

(2019) (explaining that, because unemancipated children
who claim only medical expenses are not “victim[s]” under
356                                    State v. Tellez-Suarez

applicable restitution laws, their insurers are also not victims). However, the state contends that the correct disposition is to reverse the supplemental judgment imposing restitution and remand for resentencing to allow the trial court
to determine if it has “other permissible options available”
regarding the imposition of restitution or a fine. Id. at 169.
We agree with the state that that is the correct disposition.
         Finally, as to the fifth assignment of error, the
state concedes the trial court erred by denying eligibility for
alternative incarceration programs in the judgment when it
clearly announced at the sentencing hearing that defendant
was eligible for such programs. We agree, accept this concession, and remand for resentencing. See generally State v.
Anotta, 

, 

 (2020) (correcting
similar error).
        Supplemental judgment reversed; remanded for
resentencing; otherwise affirmed.