State v. Manns

                                  574

 Argued and submitted March 9; convictions on Counts 1 and 2 reversed and
               remanded, otherwise affirmed April 7, 2021


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                    RANDY DEAN MANNS,
                      Defendant-Appellant.
                  Lincoln County Circuit Court
                      18CR26628; A170360
                              

  Sheryl Bachart, Judge.
   Lindsey Burrows argued the cause for appellant. Also on
the briefs was O’Connor Weber LLC.
   Jonathan N. Schildt, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
  PER CURIAM
   Convictions on Counts 1 and 2 reversed and remanded;
otherwise affirmed.
Cite as 

 (2021)                                                  575

           PER CURIAM
         Defendant was convicted after a jury trial of one
count of burglary in the first degree (Count 1), ORS 164.225,
and one count of theft in the first degree (Count 2), ORS
164.055.1 The jury returned nonunanimous verdicts on both
counts. On appeal, defendant first assigns error to the trial
court’s denial of his motion to dismiss the indictment based
on double jeopardy. We reject that assignment of error without discussion.
         In his second and third assignments of error, defendant contends—and the state concedes—that the trial court
plainly erred in instructing the jury that it could find defendant guilty by a 10-2 verdict and in receiving nonunanimous verdicts on Counts 1 and 2. We agree and accept
the state’s concession. After defendant filed his opening
brief, the United States Supreme Court decided Ramos v.
Louisiana, 

, 

, 

(2020), holding that the Sixth Amendment requires unanimous verdicts for convictions. Then, in State v. Ulery, 

, 

 (2020), the Oregon Supreme Court
concluded that acceptance of a nonunanimous verdict meets
the requirements for plain-error review, and the court exercised its discretion to correct the error. Accordingly, for the
reasons articulated in Ulery, we exercise our discretion to
correct the error here.
       Convictions on Counts 1 and 2 reversed and
remanded; otherwise affirmed.




    1
      The court granted defendant’s motion to dismiss Count 3 before trial, and
it memorialized that disposition in the judgment. See State v. Hernandez, 

, 

 (2021) (explaining that “the better practice” is for
taglines to reflect a disposition for all counts resolved by the judgment on appeal).