State v. Huynh

                                      456

     Submitted October 4; remanded for resentencing, otherwise affirmed
                             October 27, 2021


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                      TOAN PHUC HUYNH,
                       Defendant-Appellant.
                    Marion County Circuit Court
                       19CR56755; A173016
                                  

     Defendant was convicted of robbery, assault, and interfering with a peace
officer. The jury found him guilty of all three charges by unanimous verdicts,
found four enhancement facts by unanimous votes, and found one enhancement
fact by nonunanimous vote. The trial court imposed departure sentences on the
robbery and assault convictions, relying on three enhancement facts. On appeal,
defendant challenges both his convictions and his sentences as unconstitutional
under Ramos v. Louisiana, 

, 

, 

 (2020).
Held: Under Ramos, the trial court erred when it instructed the jury that it could
return nonunanimous verdicts and findings. That instructional error was harmless as to the unanimous guilty verdicts and the unanimous enhancement facts.
However, as the state concedes, defendant is entitled to resentencing for two reasons: (1) one of the enhancement facts on which the trial court relied to impose
departure sentences was the one found by nonunanimous vote, and (2) another
enhancement fact on which the trial court relied was one that was not tried or
found by the jury.
    Remanded for resentencing; otherwise affirmed.



    Mary Mertens James, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stephanie J. Hortsch, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Doug M. Petrina, Assistant Attorney
General, filed the brief for respondent.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
    AOYAGI, J.
    Remanded for resentencing; otherwise affirmed.
Cite as 

 (2021)                             457

        AOYAGI, J.
         Defendant was convicted of third-degree robbery,
ORS 164.395, fourth-degree assault, ORS 163.160, and
interfering with a peace officer, ORS 162.247, based on
unanimous jury verdicts. The jury also found five enhancement facts to support upward departure sentences: that the
crimes involved a threat of or actual violence, that defendant
had been persistently involved in similar offenses, that prior
sanctions had failed to deter defendant’s criminal activity,
that defendant demonstrated a disregard for laws and rules,
and that incarceration was necessary for the safety of the
public. The jury returned an 11-1 verdict on the enhancement fact that prior sanctions had failed to deter defendant’s
criminal activity; it otherwise returned unanimous verdicts
on the enhancement facts. When sentencing defendant, the
trial court imposed upward departure sentences on both
the robbery conviction and the assault conviction, based on
defendant’s persistent involvement in similar offenses, prior
sanctions having not deterred defendant’s criminal activity,
and the crimes being against a vulnerable victim.
         On appeal, defendant argues that the trial court
plainly erred in instructing the jury that it could return
nonunanimous verdicts as to guilt and as to the enhancement facts. He seeks reversal of all of his convictions on that
basis, asserting structural error under Ramos v. Louisiana,

, 

, 

 (2020). The
state concedes that the court’s instructions were erroneous
under Ramos but maintains that the error was harmless
as to the unanimous verdicts and the unanimously found
departure facts. For the reasons discussed in State v. Flores
Ramos, 

, 

 (2020), we agree
with the state and reject defendant’s arguments as to the
unanimous verdicts and the unanimously found departure
facts.
        As for defendant’s remaining arguments, the state
concedes, and we agree, that this case must be remanded for
resentencing for two reasons.
         First, as noted, the trial court imposed departure
sentences for the robbery and assault convictions based in
part on an enhancement fact—that prior sanctions had failed
458                                                          State v. Huynh

to deter defendant’s criminal activity—on which the jury
returned a nonunanimous verdict. That was error in light of
Ramos. The Sixth Amendment provides not only the right to
a unanimous jury but also the right to unanimous jury findings on sentence-enhancement facts such as the one at issue
here. See Apprendi v. New Jersey, 

, 

, 

 (2000) (other than the fact of a
prior conviction, any fact that increases the penalty for a
crime beyond the statutory maximum must be submitted
to a jury and proved beyond a reasonable doubt); Blakely v.
Washington, 

, 

, 

 (2004) (the statutory maximum sentence for a crime
for Apprendi purposes is the sentence authorized by the sentencing guidelines without additional factual determinations); see also ORS 136.785(3) (requiring an enhancement
fact tried to a jury to be found by a number of jurors “equal
to or greater than the number of jurors that was required
to find the defendant guilty of the crime”); ORS 136.792(2)
(same for resentencing). For the reasons set forth in State v.
Ulery, 

, 

 (2020), we exercise
our discretion to correct the error.
         Second, the state concedes, and we agree, that the
trial court plainly erred in relying on an enhancement fact—
that the crimes involved a vulnerable victim—that was not
tried to or found by the jury. See ORS 136.770(1) (providing
for an enhancement fact related to a charged offense to be
tried to the jury, unless the defendant waives the right to a
jury trial on the enhancement fact and either admits to the
enhancement fact or elects to have it tried to the court).
        Accordingly, defendant is entitled to resentencing,
and we remand for that purpose.1
           Remanded for resentencing; otherwise affirmed.




    1
      Given our disposition, we need not reach defendant’s third assignment of
error, which raises an unpreserved issue regarding the legal propriety of the trial
court’s use of the persistent-involvement factor in sentencing. Any arguments on
that issue are better directed to the trial court on remand.