State v. Shelby

                                    647

    Submitted on remand from the Oregon Supreme Court October 5, 2021;
 convictions on Counts 2, 3, 4, 6, and 7 reversed and remanded, convictions on
 Counts 18 and 19 reversed and remanded for entry of judgment of conviction
for one count of first-degree kidnapping, remanded for resentencing, otherwise
                           affirmed February 16, 2022


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                     ROBERT C. SHELBY,
                 aka Robert Chieffoun Shelby,
                     Defendant-Appellant.
                Multnomah County Circuit Court
                     16CR20915; A166011
                                

  On remand from the Oregon Supreme Court, State v.
Shelby, 

, 

 (2021).
   Thomas M. Ryan, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Emily P. Seltzer, Deputy Public Defender,
Office of Public Defense Services, filed the opening and second supplemental brief for appellant. Robert C. Shelby filed
the first supplemental brief pro se.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the briefs for respondent.
  Before Tookey, Presiding Judge, and Aoyagi, Judge, and
Armstrong, Senior Judge.
   PER CURIAM
    Convictions on Counts 2, 3, 4, 6, and 7 reversed and
remanded; convictions on Counts 18 and 19 reversed and
remanded for entry of judgment of conviction for one count of
first-degree kidnapping; remanded for resentencing; otherwise affirmed.
648                                           State v. Shelby

        PER CURIAM
         This case is before us on remand from the Oregon
Supreme Court. Defendant appealed his convictions for
one count of first-degree burglary (Count 1), four counts of
first-degree kidnapping (Counts 2, 3, 18, and 19), one count
of unlawful use of a weapon (Count 4), four counts of first-degree rape (Counts 5, 13, 14, and 16), four counts of first-degree sexual abuse (Counts 6, 7, 8, and 12), one count of
strangulation (Count 9), two counts of fourth-degree assault
(Counts 10 and 20), and three counts of first-degree sodomy
(Counts 11, 15, and 17). In our original decision, issued prior
to Ramos v. Louisiana, 

, 

, 

 (2020) (convictions for serious offenses that are based
on nonunanimous jury verdicts violate Sixth Amendment),
we rejected without discussion defendant’s arguments that
the court plainly erred in instructing the jury that its verdicts need not be unanimous, in accepting nonunanimous
guilty verdicts on some charges, and in accepting nonunanimous jury findings regarding “use or threatened use of a
weapon” as to other charges. State v. Shelby, 

,

 (2019), rev allowed, decision vac’d, 

,

 (2021). We did, however, agree with several of
defendant’s merger arguments, and consequently reversed
and remanded on Counts 2 and 3 for entry of judgment of
conviction for one count of first-degree kidnapping, similarly
reversed and remanded on Counts 18 and 19 for entry of
judgment of conviction for one count of first-degree kidnapping, and reversed and remanded on Counts 6, 7, and 8 for
entry of judgment of conviction for one count of first-degree
sexual abuse. Id. at 279.
         After the Supreme Court’s remand of this case for
reconsideration in light of Ramos, the parties agree that
some of defendant’s convictions must be reversed due to lack
of jury unanimity, either as to defendant’s guilt (Counts
2, 3, 4, 6, and 7) or as to the “use or threatened use of a
weapon” sentence-enhancement facts (Counts 1, 5, 16, and
17). See State v. Ulery, 

, 

(2020) (trial court’s acceptance of a nonunanimous jury verdict constitutes plain error); State v. Huynh, 

, 

 (2021) (“The Sixth Amendment provides
not only the right to a unanimous jury but also the right to
Cite as 

 (2022)                              649

unanimous jury findings on sentence-enhancement facts.”).
For the reasons set forth in Ulery, we exercise discretion to
correct those errors as plain error. To the extent that defendant argues that the error in instructing the jury as to
nonunanimous verdicts requires reversal of his convictions
based on unanimous verdicts, we reject that argument for
the reasons set forth in State v. Flores Ramos, 

, 

 (2020).
         Our disposition of the nonunanimous-verdict issues
obviates the need to address the merger issues regarding
Counts 2, 3, 6, and 7, but reversal and remand is still required
as to Counts 18 and 19 for merger, as described in our prior
opinion, Shelby, 

. In light of those reversals
and remands, the entire case must be remanded for resentencing, which will also give the trial court the opportunity
to correct the errors with respect to the nonunanimous jury
findings as to sentence-enhancement facts. We reject defendant’s remaining assignments of error without discussion.
         Convictions on Counts 2, 3, 4, 6, and 7 reversed and
remanded; convictions on Counts 18 and 19 reversed and
remanded for entry of judgment of conviction for one count of
first-degree kidnapping; remanded for resentencing; otherwise affirmed.