GUERRERO PEREZ v. KELLY (2023)

Petitioner seeks review of the Court of Appeals' decision, Guerrero-Perez v. Kelly, 322 Or App 383, 518 P.3d 155 (2022), which affirmed the circuit court's denial of his petition for post-conviction relief. Among other claims, petitioner asserts that, in the underlying criminal case, his right to a jury trial under the Sixth Amendment to the United States Constitution was violated when, on each of the charges against him, he was convicted based on nonunanimous jury verdicts. Petitioner bases his argument on Ramos v. Louisiana, in which the United States Supreme Court held that the Sixth Amendment prohibits convictions based on nonunanimous jury verdicts. ––– U.S. ––––, 140 S Ct 1390, 206 L Ed 2d 583 (2020).

We held petitioner's petition for review in abeyance pending decisions in Huggett v. Kelly, 370 Or. 645, 523 P.3d 84 (2022), and Jones v. Brown, 370 Or. 649, 523 P.3d 82 (2022). In those cases, the state argued that Ramos did not apply retroactively; in other words, the state argued that persons whose convictions were final before Ramos issued could not obtain post-conviction relief based on Ramos. This court rejected that argument in Watkins v. Ackley, 370 Or. 604, 523 P.3d 86 (2022), which was decided the same day as Huggett and Jones. In Watkins, this court held that, when a petitioner establishes that their conviction was based on a nonunanimous jury verdict, the petitioner is entitled to post-conviction relief (at least in cases like Watkins, Huggett, Jones, and this one, where the state has not raised, much less proven, any of the procedural defenses in the Post-Conviction Hearings Act). 370 Or. at 633, 523 P.3d 86; see also Huggett, 370 Or. at 648, 523 P.3d 84 (following Watkins); Jones, 370 Or. at 651, 523 P.3d 82 (same).

Because the parties' arguments regarding petitioner's Ramos claim in this case are the same as in Watkins, we hold that petitioner is entitled to post-conviction relief on each of his convictions. Given that holding, petitioner's other claims for post-conviction relief are moot. See Huggett, 370 Or. at 648 n 3, 523 P.3d 84 (so holding regarding the petitioner's claims that his counsel provided constitutionally inadequate representation in connection with convictions based on nonunanimous verdicts).

Petitioner's petition for review is allowed. The decision of the Court of Appeals is vacated. The case is remanded to the circuit court for further proceedings.

PER CURIAM