38
Submitted January 16, 2020; conviction on Count 4 reversed and remanded,
remanded for resentencing, otherwise affirmed March 17, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
TIMOTHY JAY GASSNER,
Defendant-Appellant.
Crook County Circuit Court
16CR47092; A167855
483 P3d 1207
On appeal, defendant assigns error to the trial court’s instruction that the
jury could convict defendant of felony crimes without unanimously finding him
guilty, and he assigns error to the sentence imposed. The state concedes that
the trial court erred in instructing the jury that its verdict need not be unanimous and in accepting the nonunanimous verdict on Count 4. Held: The Court
of Appeals concluded that the trial court erred in instructing the jury that its
verdicts need not be unanimous and in accepting the nonunanimous verdict
on Count 4. Ramos v. Louisiana, 590 US ___,
140 S Ct 1390,
206 L Ed 2d 583
(2020). Defendant was not entitled to reversal as to the unanimous verdicts on
the remaining 12 counts. See State v. Flores Ramos,
367 Or 292, 334,
478 P3d 515
(2020) (concluding that, in like circumstances, the “trial court’s instruction to the
jury that it could return a nonunanimous verdict did not amount to a structural
error and was harmless beyond a reasonable doubt”). The disposition obviated
the need to address the sentencing issues on their merits.
Conviction on Count 4 reversed and remanded; remanded for resentencing;
otherwise affirmed.
Daniel Joseph Ahern, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Morgen E. Daniels, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Adam Holbrook, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and Powers, Judge,
and Sercombe, Senior Judge.
LAGESEN, P. J.
Conviction on Count 4 reversed and remanded; remanded
for resentencing; otherwise affirmed.
Cite as 310 Or App 38 (2021) 39
LAGESEN, P. J.
Defendant appeals from a judgment of conviction
for five counts of first- degree sodomy, ORS 163.405 (Counts
1, 6, 7, 8, and 13); seven counts of first-degree rape, ORS
163.375 (Counts 2, 3, 4, 5, 9, 11, and 12); and one count of
first-degree unlawful sexual penetration, ORS 163.411
(Count 10). For the reasons explained below, we reverse the
conviction on Count 4 and otherwise affirm.
Because it is dispositive, we first address defendant’s last three assignments of error in which he challenges
the trial court’s nonunanimous jury instructions. Defendant
asked the court to instruct the jury that its verdicts must be
unanimous. The court denied defendant’s request, explaining, “And current case law in Oregon does not require it, and
I think law is better made at the appellate level than the
trial level, so I’m going to follow the current law that allows
10-2 verdict in felony cases.” The court instructed the jury
that it could find defendant guilty by nonunanimous verdicts. Defendant excepted to the court’s instruction. The jury
returned unanimous verdicts on all counts except Count 4.
The vote on Count 4 was 11-1. The trial court accepted the
jury’s verdicts.
The state concedes that the trial court erred in
instructing the jury that its verdict need not be unanimous
and in accepting the nonunanimous verdict on Count 4.
We agree that that was error under Ramos v. Louisiana,
590 US ___,
140 S Ct 1390,
206 L Ed 2d 583 (2020), and
accept the state’s concession. As to the unanimous verdicts,
defendant is not entitled to reversal in view of the Supreme
Court’s decision in State v. Flores Ramos,
367 Or 292, 334,
478 P3d 515 (2020). There, the court concluded, in like circumstances, that the “trial court’s instruction to the jury
that it could return a nonunanimous verdict did not amount
to a structural error and was harmless beyond a reasonable
doubt.”
Defendant’s remaining assignments of error address
sentencing decisions by the trial court. Because the reversal
of defendant’s conviction on Count 4 will require resentencing, we address them briefly to facilitate the court’s sentencing decision on remand.
40 State v. Gassner
In the first assignment of error, defendant argues
that the trial court improperly punished him for exercising
his state and federal constitutional rights to a jury trial by
imposing a harsher sentence based on his exercise of those
rights. In support of that argument, defendant points to
the following statement by the court explaining the factors
bearing on its sentencing decision:
“But by maintaining your innocence and not taking any
responsibility for your action, you have forced the victim to
have to testify in trial, have to share her abuse, you know,
and have this pending for—I think the attorney said it was
filed in July. You know, it’s been almost two years since
the secret indictment was returned. It’s been almost three
years since the last allegation of abuse as opposed to situations where the cases are resolved quicker and the victim
can have some closure.
“This abuse started in 2012. We’re in 2018. So, literally,
this person has deal[t] with this for more than—way more
than half of her life. About two-thirds of her life. And that’s
disappointing for the Court.”
Defendant is correct that “[a] court must impose a
sentence based solely on the facts of the case and the defendant’s personal history, and not as punishment for pleading
not guilty and proceeding to trial.” State v. Qualey, 138 Or
App 74, 76,
906 P2d 835 (1995) (citations omitted). Here, the
trial court did not explicitly state that defendant’s exercise
of his right to trial was a factor considered by the court in
its sentencing. The court’s statement on the record, however,
suggests that it may have viewed defendant’s exercise of his
constitutional rights as aggravating factors for the purposes
of sentencing. Defendant did not object on that ground, and,
in light of our remand, we need not resolve that issue in a
plain error posture. On resentencing, the court will be able
to take into account our holding in Qualey that a criminal
defendant has state and federal constitutional rights to trial
by jury and cannot, consistent with either constitution, be
subjected to punishment in the form of a harsher sentence
for exercising those rights.
Finally, in his remaining assignments of error,
defendant argues that the imposition of consecutive 300-
month terms of incarceration on two of his convictions has
Cite as 310 Or App 38 (2021) 41
resulted in an unconstitutionally disproportionate sentence, in violation of Article I, section 16, of the Oregon
Constitution and the Eighth Amendment to the United
States Constitution. To the extent the issue may recur on
resentencing, we note that we have consistently rejected
nearly identical arguments in previous cases. See, e.g., State
v. Hoover,
250 Or App 504, 508,
280 P3d 1061, rev den,
352
Or 564 (2012) (holding that 300-month sentences under
Jessica’s Law are constitutional both under Article I, section 16, and the Eighth Amendment); State v. Alwinger,
231
Or App 11, 18-19,
217 P3d 692 (2009), adh’d to as modified
on recons,
236 Or App 240,
236 P3d 755 (2010) (holding the
same).
Conviction on Count 4 reversed and remanded;
remanded for resentencing; otherwise affirmed.
