599
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted August 17, 2022; Counts 2 and 9 reversed and remanded, remanded
for resentencing, otherwise affirmed January 5, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
BILLY JAMES PARHAM,
aka Bill James Parham, aka Billy J. Parham,
aka Bill Parhan, aka Billy James Porham,
Defendant-Appellant.
Jackson County Circuit Court
14CR04777; A174861
Lisa C. Greif, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Eric Johansen, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant. Billy
James Parham filed the supplemental brief pro se.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and E. Nani Apo, Assistant Attorney General,
filed the brief for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
ORTEGA, P. J.
Counts 2 and 9 reversed and remanded; remanded for
resentencing; otherwise affirmed.
600 State v. Parham
ORTEGA, P. J.
This is defendant’s third appeal, after having been
resentenced twice following remands from this court.
Defendant now appeals from a second-amended judgment
of conviction for one count of first-degree criminal mistreatment (Count 1), ORS 163.205; three counts of aggravated
identity theft (Counts 3, 4, and 5), ORS 165.803; and one
count of first-degree theft (Count 6), ORS 164.055. The jury
also found defendant guilty of a second count of first-degree
criminal mistreatment (Count 2), which the court merged
into Count 1, two additional counts of first-degree theft
(Counts 7 and 8) and one count of first-degree aggravated
theft (Count 9), which the court merged into Count 6. In
defendant’s first appeal, we rejected most of his claims, but
remanded for resentencing after concluding that “the trial
court plainly erred in imposing a sentence greater than
the statutory maximum” on Count 1. State v. Parham, 302
Or App 179, 180,
456 P3d 690 (2020). In defendant’s appeal
after resentencing, we accepted the state’s concession that
the trial court erroneously resentenced defendant and
vacated the judgment, remanding for a second resentencing
on all counts.
In this third appeal, defendant first raises three
assignments of error, one challenging the constitutionality of his aggregate 66-month prison sentence on remand
and two others challenging the application of ORS 137.717
to enhance his sentences in Counts 4 and 5. In four pro se
supplemental assignments, defendant respectively assigns
error to the denial of his motion to disqualify the sentencing judge; to the court’s imposition of consecutive sentences
in Counts 3, 4, and 5; to the sufficiency of the evidence for
Counts 3, 4, and 5; and to the court’s refusal to order a new
trial on two counts that were based on nonunanimous jury
verdicts.
With regard to the nonunanimous jury verdicts,
as explained below, the state concedes, and we agree, that
defendant is entitled to a new trial on Counts 2 and 9, which
the record reveals were the counts based on nonunanimous
jury verdicts. We reject defendant’s pro se challenge to the
sufficiency of the evidence on Counts 3, 4, and 5, as those
Nonprecedential Memo Op: 323 Or App 599 (2023) 601
counts were previously affirmed in his first appeal. We reject
defendant’s pro se challenge to the denial of his motion to
recuse the sentencing judge as moot, because the judge is
no longer on the bench and our reversal on Counts 2 and 9
requires that we remand the case for resentencing. For
the same reason, we also do not reach defendant’s assignments of error related to his sentencing. Thus, we reverse
and remand Counts 2 and 9, remand for resentencing, and
otherwise, affirm.
Accordingly, we write to address only defendant’s
fourth supplemental assignment of error. We review claims
concerning nonunanimous jury verdicts—which qualify for
reversal and remand as plain error—for legal error. State v.
Poston, 309 Or App 377, 386,
482 P3d 778 (2021) (a “court’s
entry of judgment based on nonunanimous jury verdicts …
[is] plainly erroneous and requires reversal”).
On appeal, defendant argues, and the state concedes, that the trial court erred as a matter of law when it
denied defendant’s motion for a new trial based upon the
nonunanimous jury verdict of 11-1 on Counts 2 and 9.1 The
Supreme Court has determined that “the nature of the error
in [a nonunanimous verdict] is such that an appellate court
ordinarily should review it.” State v. Ulery, 366 Or 500, 504,
464 P3d 1123 (2020). “[A] trial court’s entry of judgments of
conviction based on nonunanimous verdicts violates a defendant’s right to a jury trial under the Sixth and Fourteenth
Amendments to the United States Constitution.” Poston,
309 Or App at 380 (citing Ramos v. Louisiana,
590 US ___,
140 S Ct 1390,
206 L Ed 2d 583 (2020), which concluded
that the jury trial guarantee of the Sixth Amendment to the
United States Constitution includes “a right to a unanimous
verdict”).
Here, the trial court erred as a matter of law by
allowing a nonunanimous jury conviction against defendant. Defendant first raised this claim of error in his first
appeal, and we rejected it, which was before the United
1
In his brief, defendant’s challenge to the jury’s nonunanimous verdict
refers to Counts 1 and 2, but the record shows, in accordance with the state’s concession and defendant’s first appeal, that the nonunanimous jury verdicts were
on Counts 2 and 9.
602 State v. Parham
States Supreme Court issued its decision in Ramos and
before the Oregon Supreme Court issued its decision in
Ulery or we issued our decision in Poston. See Parham, 302
Or App at 180. We generally do not revisit our decisions in
prior appeals in the same case. However, in light of Ramos,
Ulery, and Poston, we conclude that it is appropriate to do so
here. Accordingly, we reverse and remand Counts 2 and 9
for a new trial considering defendant’s constitutional right
to a unanimous jury verdict.
Counts 2 and 9 reversed and remanded; remanded
for resentencing; otherwise affirmed.
