STATE v. LOPEZ (2021)

Defendant was found guilty by jury verdict of one count of first-degree sexual abuse, ORS 163.427 (Count 1); and one count of first-degree unlawful sexual penetration, ORS 163.411 (Count 2). The verdict on an additional count of first-degree unlawful sexual penetration was merged with the verdict on two other counts in the judgment of conviction. On appeal, in three assignments of error, defendant claims the trial court erred by (1) instructing the jury that it may return nonunanimous verdicts; (2) imposing post-prison supervision (PPS) of 120 months, less time actually served, for Count 1; and (3) imposing PPS of 100 years for Count 2.

In the first assignment of error, defendant asserts that instructing the jury that it could return nonunanimous verdicts constituted a structural error requiring reversal. After the United States Supreme Court ruled against nonunanimous jury verdicts for serious offenses in Ramos v. Louisiana, 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020), the Oregon Supreme Court explained that providing a nonunanimous jury instruction was not a structural error that categorically requires reversal in every case. State v. Flores Ramos, 367 Or. 292, 319, 478 P.3d 515 (2020). As this issue was not preserved and no jury poll was conducted, we decline to exercise our discretion to review the nonunanimous jury instruction here for plain error. State v. Dilallo, 367 Or. 340, 348-49, 478 P.3d 509 (2020) (explaining that plain error review for nonunanimous jury instructions without an accompanying jury poll is “contrary to the basic goal of procedural fairness * * * that motivates the preservation requirement”).

In the second assignment of error, with respect to Count 1, defendant argues that the PPS sentence of 120 months, minus time actually served, created an unlawful indeterminate PPS term. He relies on State v. Young, 249 Or. App. 597, 277 P.3d 645 (2012), for that proposition. Defendant's argument fails, however, because Young and the cases on which it relied did not involve ORS 144.103(1). See, e.g., State v. Chavez-Reyes, 303 Or. App. 161, 162, 459 P.3d 963 (2020) (noting the difference between standard determinate PPS terms and indeterminate PPS terms required by ORS 144.103); State v. Burch, 134 Or. App. 569, 573, 896 P.2d 10 (1995) (explaining the nature of the PPS term required under ORS 144.103). We therefore reject the second assignment of error.

In the third assignment of error, defendant claims that the PPS term of 100 years for Count 2 is unlawfully excessive. While this appeal was pending, the trial court amended the PPS term for Count 2 to life, rather than 100 years. Because this PPS term now conforms with the statutory requirement found in ORS 144.103(2)(a), we reject the third assignment without further written discussion.¹

Affirmed.

FOOTNOTES

1.   ORS 144.103(2)(a) provides that a “person sentenced to a term of imprisonment for [first-degree unlawful sexual penetration with a victim under 12 years of age [ORS 163.411(1)(b)] shall serve a term of post-prison supervision that continues for the rest of the person's life.”

PER CURIAM