State v. Jeffery

Full title: STATE OF OREGON, Plaintiff-Respondent, v. ANTONIO D'EPIRO JEFFERY…

Court: COURT OF APPEALS OF THE STATE OF OREGON

Date published: Jan 27, 2021

308 Or. App. 833 (Or. Ct. App. 2021)

479 P.3d 629

Opinion

A171571

01-27-2021

STATE of Oregon, Plaintiff-Respondent, v. Antonio D'epiro JEFFERY, Defendant-Appellant.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Sarah Laidlaw, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jonathan N. Schildt, Assistant Attorney General, filed the brief for respondent.

PER CURIAM.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Sarah Laidlaw, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jonathan N. Schildt, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge.

PER CURIAM Defendant was convicted by jury verdict of delivery of methamphetamine (Count 1), unlawful possession of methamphetamine (Count 2), and unlawful possession of a firearm (Count 4). The jury had been instructed that its verdicts did not need to be unanimous, which was error under the Sixth Amendment to the United States Constitution. See Ramos v. Louisiana , 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020). The jury was unanimous as to Counts 2 and 4, but not as to Count 1.

On appeal, defendant argues that the trial court erred in giving the nonunanimous jury instruction, that the error was structural, and that all of his convictions therefore should be reversed. The state concedes that defendant is entitled to reversal on the nonunanimous count. We agree and accept the concession and exercise our discretion to correct the error for the reasons set forth in State v. Ulery , 366 Or. 500, 464 P.3d 1123 (2020). As for defendant's structural error argument concerning the remaining convictions, he makes the same arguments that were rejected in State v. Flores Ramos , 367 Or. 292, 478 P.3d 515 (2020).

Conviction on Count 1 reversed and remanded; remanded for resentencing; otherwise affirmed.