310 Or. App. 859 - State v. Akins

                                  859

 Submitted March 8; conviction on Count 3 reversed and remanded, remanded
            for resentencing, otherwise affirmed April 21, 2021


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                  BRYON LLOYD AKINS,
                    Defendant-Appellant.
               Washington County Circuit Court
                    18CR58266; A170923

485 P3d 313



   Eric Butterfield, Judge.
   Bear Wilner-Nugent filed the brief for appellant. Byron
Lloyd Akins filed the supplemental brief pro se.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patrick M. Ebbett, Assistant Attorney
General, filed the brief for respondent.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
   PER CURIAM
   Conviction on Count 3 reversed and remanded; remanded
for resentencing; otherwise affirmed.
860                                            State v. Akins

        PER CURIAM
         Defendant was convicted of seven counts of firstdegree unlawful sexual penetration and seven counts of firstdegree sexual abuse. On one of those convictions—Count 3—
the jury returned a nonunanimous verdict. Defendant
argues that the trial court plainly erred when it entered a
judgment of conviction on Count 3. The state concedes that
the court plainly erred. That is, under Ramos v. Louisiana,

590 US ___

140 S Ct 1390

206 L Ed 2d 583

 (2020), the
court’s instruction and acceptance of the nonunanimous
verdicts was error. Further, in State v. Ulery,

366 Or 500, 503-04

464 P3d 1123

 (2020), the Oregon Supreme Court
concluded that a trial court’s acceptance of a nonunanimous
verdict constituted plain error and exercised its discretion
to correct that error. Consequently, we accept the state’s concession and agree that the trial court plainly erred and, for
the reasons set forth in Ulery (gravity of the error and the
trial court would not have been able to correct the error had
the error been raised), we exercise our discretion to correct
the error.
         Defendant raises an additional assignment of
error in supplemental briefing. We reject it without written
discussion.
       Conviction on Count 3 reversed and remanded;
remanded for resentencing; otherwise affirmed.