BETHANIE JONES v. BROWN (2022)

BALMER, J.

Petitioner sought post-conviction relief on the ground that three of seven criminal convictions that resulted from her 2015 jury trial had been based on nonunanimous guilty verdicts and thus violated the rule announced in Ramos v. Louisiana, ___ US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020), that the Sixth Amendment prohibits conviction of a crime by a nonunanimous verdict.¹ The post-conviction court denied relief on that claim, holding that the Ramos rule was inapplicable to the challenged convictions because those convictions already were final when Ramos was decided. Petitioner appealed the denial of that claim, and the appeal was certified to this court, along with two other post-conviction appeals, Watkins v. Ackley, 370 Or 604, ___ P3d ___ (2022), and Huggett v. Kelly, 370 Or 645, ___ P3d ___ (2022) (both decided this day), that raise similar questions about whether and how a conviction that was based on a nonunanimous guilty verdict can be challenged, based on Ramos, in a post-conviction proceeding.

Our decision in Watkins resolves the present claim of error. In Watkins, the petitioner's sole claim on appeal was that the post-conviction court had erred in denying relief for convictions that were entered in violation of the jury unanimity requirement recognized in Ramos, based on its conclusion that the rule of Ramos did not apply “retroactively” to convictions that already were final when the Ramos decision issued. We concluded that the post-conviction court's reasoning was incorrect—that a conviction that violates the Ramos jury unanimity rule, even if it became final before that rule was announced, constitutes a “substantial denial” of a constitutional right which “rendered the conviction[s] void,” and thus requires post-conviction relief under ORS 138.530(1)(a)—unless one of the procedural defenses in the Post-Conviction Hearings Act has been raised and sustained. Watkins, 370 Or at 607.

Like the petitioner in Watkins, petitioner here argues that the post-conviction court erred in denying relief for her convictions that had been entered in violation of the Ramos jury unanimity rule on the ground that that rule does not apply retroactively. Watkins establishes that petitioner is correct that the post-conviction court's reasoning was erroneous. In the absence of any argument by the state that the post-conviction court's decision was correct for some other reason, we conclude that the post-conviction court erred in denying relief as to petitioner's three convictions that were entered on nonunanimous verdicts.²

The judgment of the circuit court is affirmed in part and reversed in part, and the case is remanded to the circuit court for further proceedings.

FOOTNOTES

1.   In her 2015 trial, petitioner was convicted of first-degree assault with a firearm (Count 1), second-degree assault with a firearm (Count 2), and unlawful use of a weapon (firearm) (Count 3), by nonunanimous (11-1) verdicts; as well as four counts of reckless endangerment (Counts 4-7) by unanimous verdicts. Those convictions became final in 2019, after this court denied petitioner's petition for review of the Court of Appeals’ decision affirming her convictions. State v. Jones, 296 Or App 553, 439 P3d 485, rev den, 365 Or 557 (2019).

2.   In her appeal, petitioner also challenges the post-conviction court's denial of relief on her claims that trial counsel had been constitutionally inadequate in four respects: first, in failing to object to certain comments by the prosecutor that indicated that petitioner had invoked her rights to counsel and to remain silent; second, in failing to object to certain comments by the prosecutor that indicated that petitioner had invoked her right to counsel; third, in failing to object to the three nonunanimous guilty verdicts; and fourth, in failing to object to jury instructions regarding the permissibility of nonunanimous guilty verdicts. We reject without discussion petitioner's challenge to the post-conviction court's denial of relief on the first two of those inadequate assistance of counsel claims (which in theory might have implicated all seven of her convictions, rather than just the three that resulted from nonunanimous verdicts). We do not address petitioner's challenge to the denial of the other two inadequate assistance of counsel claims because our present decision that petitioner is entitled to relief on her claim that directly implicates the three convictions that were based on nonunanimous verdicts, renders those challenges moot.

BALMER, J.