State v. Bock (A171080)

                                  360

   Submitted November 23, 2020; in Case Number 19CR20501, conviction
  on Count 1 reversed and remanded, remanded for resentencing, otherwise
       affirmed; in Case Number 15CR31837 affirmed March 31, 2021


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
                DEVON THOMAS LEE BOCK,
                    Defendant-Appellant.
                 Marion County Circuit Court
                  19CR20501, 15CR31837;
                 A171080 (Control), A171081
                               

   David E. Leith, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Erik Blumenthal, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the brief for respondent.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
   PER CURIAM
   In Case Number 19CR20501, conviction on Count 1
reversed and remanded; remanded for resentencing; otherwise affirmed. In Case Number 15CR31837 affirmed.
Cite as 

 (2021)                            361

        PER CURIAM
         In the first of these consolidated cases, defendant
contests his conviction of first-degree criminal mischief,
ORS 164.365 (Count 1) and second-degree burglary, ORS
164.215 (Count 2). Defendant was also found guilty by the
jury of another count of second-degree burglary (Count 3),
which was merged with the guilty verdict for Count 2. A
jury poll indicated unanimity for Counts 2 and 3, but not
Count 1. In the second of these consolidated cases, defendant was found to have violated probation by engaging in
new criminal activity. On appeal, defendant claims, in three
assignments of error, that the trial court erred by (1) providing a jury instruction allowing nonunanimous verdicts,
(2) accepting a nonunanimous verdict on Count 1, and
(3) relying on the faulty convictions to find that defendant
violated probation in the second case.
         In the first assignment, defendant asserts that
instructing the jury that it could return nonunanimous
verdicts constituted a structural error requiring reversal on all counts. After the United States Supreme Court
ruled against nonunanimous 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). Additionally, when, as here, the jury returned
mixed verdicts, the “instructional error is harmless as to
the unanimous verdicts.” 

. We therefore reject the
first assignment of error.
         In his second assignment, defendant claims that
accepting the nonunanimous verdict for Count 1 was plainly
erroneous. The state concedes that, in light of Ramos, the
conviction for Count 1 cannot stand. We agree, and for the
reasons set forth in State v. Ulery, 

, 

(2020), exercise our discretion to correct the plain error. We
therefore reverse and remand the conviction as to Count 1.
         In the third assignment of error, defendant argues
that, if we conclude that Ramos requires reversal of his
convictions, we must reverse the probation revocation.
362                                  State v. Bock (A171080)

Defendant, however, has not explained the extent of the
trial court’s purported error in revoking his probation when,
as it happens in this instance, Ramos requires reversal and
remand only on Count 1, while leaving the other count of
conviction undisturbed. Further, defendant cites State v.
Brown, 

, 

 (1981), for the proposition that a probation revocation is remanded when the
“primary” basis of the revocation was a vacated conviction.
But defendant fails to provide us with an explanation for
his suggestion that the conviction on Count 1 was the primary basis for the revocation. It is not clear that that would
be so given that a condition of defendant’s probation was
that he “[o]bey all laws” and that defendant admitted that
he violated probation by engaging in new criminal activity
and did not seek a hearing. We therefore affirm defendant’s
probation revocation because defendant has not sufficiently
developed grounds for concluding otherwise.
         In Case Number 19CR20501, conviction on Count 1
reversed and remanded; remanded for resentencing; otherwise affirmed. In Case Number 15CR31837 affirmed.