State v. Williams

                                       495

 On petition for review filed August 16, 2019, considered and under advisement
 May 21;* petition for review allowed, limited to issue of appropriate disposition
of this case in light of Ramos v. Louisiana, decision of Court of Appeals reversed,
    judgment of circuit court reversed, and case remanded to circuit court for
                          further proceedings June 4, 2020


                   STATE OF OREGON,
                   Respondent on Review,
                              v.
               OLAN JERMAINE WILLIAMS,
                    Petitioner on Review.
          (CC 15CR58698) (CA A163895) (SC S066872)
                                    

     Defendant was convicted based on a nonunanimous guilty verdict. He raised
an Equal Protection Clause challenge to the conviction by a nonunanimous jury
in a motion for a new trial, but he did not raise a Sixth Amendment challenge to
his conviction in either the trial court or the Court of Appeals. He raised a Sixth
Amendment challenge for the first time in his petition for review. Held: (1) To the
extent that defendant’s failure to present the Sixth Amendment issue on appeal
would be a barrier to review, there was good cause to waive the Rules of Appellate
Procedure under the circumstances of this case; (2) for the reasons given in State
v. Ulery, 

, 

 (2020), issued this same day, the court accepts
the state’s concession that the issue qualified for plain error review and exercises
its discretion to correct the error.
     The petition for review is allowed, limited to the issue of the appropriate
disposition of this case in light of Ramos v. Louisiana. The decision of the Court
of Appeals is reversed. The judgment of the circuit court is reversed, and the case
is remanded to the circuit court for further proceedings.



    En Banc
   Marc D. Brown, Chief Deputy Defender, Salem, filed the
petition for petitioner on review. Also on the petition was
Ernest G. Lannet, Chief Defender.
   Timothy A. Sylwester, Assistant Attorney General,
Salem, filed a response to the petition for review. Also on the
response were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
______________
    * Appeal from Multnomah County Circuit Court, Bronson D. James, Judge.

, 

 (2019).
496                                        State v. Williams

   PER CURIAM
   The petition for review is allowed, limited to the issue of
the appropriate disposition of this case in light of Ramos v.
Louisiana. The decision of the Court of Appeals is reversed.
The judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
Cite as 

 (2020)                                 497

        PER CURIAM
          In Ramos v. Louisiana, 

, ___, 

, 

 (2020), the United States
Supreme Court held that, contrary to longstanding practice in Oregon, the United States Constitution requires that
“[a] jury must reach a unanimous verdict in order to convict.”
Many Oregon convictions based on nonunanimous verdicts
are presently on appeal, though those cases are in a variety
of procedural postures. In this case, the state concedes that,
notwithstanding problems with defendant’s presentation
of the issue to the trial court and to the Court of Appeals,
this court should reverse defendant’s conviction, so long as it
exercises its discretion to consider the error. For the reasons
that follow, we exercise our discretion to consider the error
and accept the state’s concession.
        Defendant was charged with two counts of firstdegree sodomy. The jury was instructed that it could return
a nonunanimous guilty verdict. Defendant did not object.
The jury acquitted defendant of one count and convicted
him of the other. The trial court polled the jury, revealing
that the guilty verdict was nonunanimous. The trial court
received both verdicts without objection by defendant.
         After defendant was sentenced, he moved for a
new trial, challenging Oregon’s nonunanimous jury law,
as applied to him, on Equal Protection Clause grounds.
Defendant, who is Black, argued that the use of nonunanimous juries in Oregon was intended to, and did, disparately
impact racial minorities. In a written opinion, the trial
court ultimately denied defendant’s motion, but it discussed
at length the historical evidence and concluded that “race
… was a motivating factor in the passage of” the constitutional amendment permitting nonunanimous jury verdicts
in Oregon.
         Defendant appealed. On appeal, he continued to
press his Equal Protection Clause argument, but he did
not raise a Sixth Amendment challenge to the trial court’s
receipt of a nonunanimous guilty verdict. The Court of
Appeals affirmed defendant’s conviction, holding that defendant’s Equal Protection Clause challenge was not reviewable. State v. Williams, 

, 

 (2019).
498                                                     State v. Williams

         Shortly before the Court of Appeals issued that
decision, the United States Supreme Court granted certiorari in Ramos, indicating that it would consider a Sixth
Amendment challenge to convictions by nonunanimous
juries in state courts.1 Defendant filed a petition for reconsideration in the Court of Appeals, raising for the first time
a Sixth Amendment challenge to his nonunanimous conviction. The Court of Appeals denied his petition for reconsideration. Defendant then filed a petition for review in this
court, which again included an argument that the Sixth
Amendment requires unanimous verdicts in state courts.
         Subsequently, the Supreme Court held in Ramos
that the Sixth Amendment, as incorporated and applicable to the states through the Due Process Clause of the
Fourteenth Amendment, requires that convictions be based
on unanimous jury verdicts. The Supreme Court did not
address the Equal Protection Clause argument that defendant had advanced in the trial court, though it did cite and
quote with approval the trial court’s opinion and its conclusions about the racist origins of Oregon’s nonunanimous
jury provision. Ramos, 590 US at ___, 

, 1394
nn 5 & 6.
         In light of Ramos, the state concedes that defendant’s Sixth Amendment challenge to his conviction meets
the requirements for plain error review and that his conviction should be reversed if this court exercises its discretion to
review the error. We accept the state’s concession and exercise our discretion to review defendant’s Sixth Amendment
challenge, even though defendant failed to raise that argument in the trial court and in his opening brief in the Court
of Appeals.
        Normally, an assignment of error to a trial court’s
ruling must be raised in the party’s opening brief in the
Court of Appeals, coupled with a supporting argument.
ORAP 5.45(1). To the extent that ORAP 5.45(1) could be

    1
      As explained in State v. Ulery, also issued this date, 

, 

 (2020), the United State Supreme Court in the 1970s had upheld the Oregon
practice of receiving nonunanimous guilty verdicts against a Sixth Amendment
challenge in Apodaca v. Oregon, 

, 

, 

(1972).
Cite as 

 (2020)                                                     499

viewed as a barrier to review in this case,2 we note that the
rule is subject to ORAP 1.20(5), which permits rules of appellate procedure to be waived for “good cause.” And, we have
recognized that an intervening “authoritative ruling of the
United States Supreme Court” can be relevant to a determination of good cause. State v. Hagberg, 

, 

 (2009). The Ramos decision transformed an assignment of error to a trial court ruling permitting a nonunanimous verdict from one that has been rejected repeatedly by
Oregon appellate courts into one with merit. Thus, the timing of the Ramos decision makes a difference in this case,
and defendant’s omission of the Sixth Amendment issue in
his opening brief in the Court of Appeals was understandable, given that it occurred before the grant of certiorari in
Ramos. Because of the state of the law at the time, the omission of a Sixth Amendment argument in defendant’s opening brief could not have altered the decision of the Court of
Appeals or prejudiced the state, particularly because of the
state’s ultimate concession.
        For the reasons given in State v. Ulery, 

,

 (2020), we accept the state’s concession that
the issue meets the requirements for plain error review, and
we exercise our discretion to correct the error. We therefore
reverse defendant’s conviction.
         The petition for review is allowed, limited to the
issue of the appropriate disposition of this case in light of
Ramos v. Louisiana. The decision of the Court of Appeals
is reversed. The judgment of the circuit court is reversed,
and the case is remanded to the circuit court for further
proceedings.




    2
      In this case, defendant challenged his nonunanimous conviction by way
of an assignment of error to the trial court’s denial of his motion for a new trial,
which was based on grounds other than the Sixth Amendment. Defendant did
not assign error to the trial court’s instruction to the jury permitting a nonunanimous verdict or to its receipt of the verdict.