STATE v. STEWART (2020)

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, ––– U.S. ––––, 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 P.3d 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.

PER CURIAM