STATE v. CANNON (2020)

Court of Appeals of Oregon.

STATE of Oregon, Plaintiff-Respondent, v. Audrey Beth CANNON, Defendant-Appellant.

A162360

Decided: June 17, 2020

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

Marc D. Brown, Deputy Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services. Peenesh Shah, Assistant Attorney General, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General. Janis C. Puracal, Steven T. Wax, and Brittney R. Plesser filed the briefs amicus curiae for Oregon Innocence Project.

Defendant was convicted of first-degree burglary by nonunanimous jury verdict. ORS 164.225. Defendant con-tends that the trial court's acceptance of a nonunanimous verdict constitutes plain error under the Sixth Amendment to the United States Constitution. In Ramos v. Louisiana, ––– U.S. ––––, 140 S. Ct. 1390, 206 L.Ed.2d 583 (2020), the Court concluded that nonunanimous jury verdicts violated the Sixth Amendment. In State v. Ulery, 366 Or. 500, 504, 464 P.3d 1123 (2020), the Oregon Supreme Court concluded that a trial court's acceptance of a nonunanimous verdict constituted plain error and exercised discretion to correct that error in light of the gravity of the error and because failure to raise the error in the trial court did not weigh heavily against correction of the error because the trial court would not have been able to correct it under con-trolling law.

The state concedes that the trial court's acceptance of a nonunanimous verdict in this case constitutes plain error. 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.

PER CURIAM

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