Opinion
A177638
11-29-2023
AIRIAN JOVAN MISURACA, Petitioner-Appellant, v. STATE OF OREGON, Defendant-Respondent.
Jedediah Peterson and O'Connor Weber LLC fled the brief for appellant. Airian Misuraca fled the supplemental brief pro se. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rebecca M. Auten, Assistant Attorney General, fled the brief for respondent.
This is a Nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).
Submitted October 31, 2023
Marion County Circuit Court 20CV30443; Thomas M. Hart, Judge.
Jedediah Peterson and O'Connor Weber LLC fled the brief for appellant. Airian Misuraca fled the supplemental brief pro se.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rebecca M. Auten, Assistant Attorney General, fled the brief for respondent.
Before Lagesen, Presiding Judge, and Tookey, Judge, and Kamins, Judge.
KAMINS, J.
Petitioner appeals the denial of post-conviction relief for his 2001 guilty pleas for the crimes of rape in the third degree and furnishing alcohol to a person under 21 years of age. He alleges that his trial counsel rendered unconstitutionally ineffective assistance of counsel in failing to advise him that the jury would be required to reach a nonunanimous verdict, and, if a verdict was nonunanimous, he could challenge the constitutionality of that verdict on appeal. See Ramos v. Louisiana, 590 US, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020) (concluding that the Sixth Amendment to the United States Constitution requires that a jury reach a unanimous verdict to convict someone of a felony). He further contends that his guilty plea and attendant waiver of his right to a trial by jury was not knowing or voluntary because of trial counsel's inadequate advice. The post-conviction court granted the state's motion for summary judgment, concluding that petitioner's claims were time-barred, and, in any event, fail on the merits. We review the post-conviction court's denial of relief for legal error and accept the court's implicit and explicit factual findings, provided that there is evidence to support them. Green v. Franke, 357 Or. 301, 312, 350 P.3d 188 (2015).
On appeal, petitioner contends that his untimeliness should be excused under the statutory "escape clause" contained in ORS 138.510 and that he should prevail on the merits. Assuming, however, that petitioner qualifies for the statutory escape clause that would excuse the petition's untimeliness, his claims for post-conviction relief are foreclosed by several of our recent decisions. See Smith v. Kelly, 318 Or.App. 567, 569, 508 P.3d 77 (2022), rev den, 370 Or. 822 (2023) (holding that trial counsel do not perform deficiently by failing to advise regarding the unanimity issue before Ramos was litigated); Peeler v. Reyes, 328 Or.App. 110, 119, 537 P.3d 206 (2023) (petitioner's pre-Ramos guilty plea was knowing and intelligent because he was correctly informed about the scope of the Sixth Amendment right at the time of his plea).
Affirmed.