State v. Stewart

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No. 482 October 7, 2020 187 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. ALEX MICHAEL STEWART, Defendant-Appellant. Crook County Circuit Court 16CR15363; A169038 Annette C. Hillman, Judge. Submitted July 2, 2020. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Shawn Wiley, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General, filed the brief for respondent. Before Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge. PER CURIAM Reversed and remanded. 188 State v. Stewart PER CURIAM Defendant was convicted of first-degree unlawful sexual penetration, ORS 163.411, based on a nonunanimous verdict. He contends that the trial court’s acceptance of the nonunanimous verdict constitutes plain error under the Sixth Amendment to the United States Constitution. In Ramos v. Louisiana, ___ US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020), the United States Supreme Court concluded that nonunanimous jury verdicts violate the Sixth Amendment. In State v. Ulery, 366 Or 500, 501, 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 in light of the gravity of the error and because failure to raise the issue in the trial court did not weigh heavily against correction because the trial court would not have been able to correct the error under controlling law. The state concedes that the trial court’s acceptance of a nonunanimous verdict in this case constitutes plain error and that the conviction should be reversed. For the reasons set forth in Ulery, we exercise our discretion to correct the error in this case. Our disposition obviates the need to address defendant’s remaining arguments. Reversed and remanded.

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