Jones v. Brown

                                      649

 Argued and submitted May 12; judgment of circuit court affirmed in part and
  reversed in part, and case remanded to circuit court for further proceedings
                               December 30, 2022


                    BETHANIE J. JONES,
                  aka Bethanie Joanne Jones,
                     Petitioner-Appellant,
                               v.
                       Nichole BROWN,
                       Superintendent,
             Coffee Creek Correctional Institution,
                    Defendant-Respondent.
          (CC 20CV02495) (CA A175780) (SC S068824)
                                   

     Petitioner sought post-conviction relief, raising various claims of inadequate
assistance of counsel and a claim that three of her seven convictions had been
entered in violation of the constitutional rule in Ramos v. Louisiana, 

,

, 

 (2020), that the Sixth Amendment prohibits con-
viction of a crime by a nonunanimous verdict. The post-conviction court denied
relief and held, with respect to the claim that directly relied on the constitu-
tional jury unanimity rule announced in Ramos, that that rule was inapplicable
to petitioner’s convictions because his convictions already were final when Ramos
was decided. Petitioner appealed and her appeal was certified to the Supreme
Court under ORS 19.405, along with two other similar cases, Watkins v. Ackley,
(A176245)(S068825), and Huggett v. Kelly (A174444)(S068823). Held: (1) Under
the Court’s analysis and decision in Watkins v. Ackley, 

, 

(2022), the post-conviction court had erred in denying relief on petitioner’s three
convictions that were entered on nonunanimous verdicts, because 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; (2) petitioner’s other
post-conviction claims were either properly denied or moot in light of the Court’s
decision respecting the claim that directly relied on the constitutional rule
announced in Ramos.
   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.



   On certification from the Court of Appeals under ORS
19.405.* Certification accepted and under advisement on
September 16, 2021.
______________
   * On appeal from the Washington County Circuit Court, Patricia A. Sullivan,
Judge.
650                                                           Jones v. Brown

   Jedediah Peterson, O’Connor Weber LLC, Portland,
argued the cause and filed the briefs for appellant.
   Rebecca M. Auten, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent. Also
on the brief were Ellen Rosenblum, Attorney General,
Benjamin Gutman, Solicitor General.
   Rosalind M. Lee, Portland, filed the brief for amicus cur-
iae Oregon Criminal Defense Lawyers Association.
   Aliza Kaplan, Portland, filed the brief for amicus cur-
iae Criminal Justice Reform Clinic at Lewis & Clark Law
School. Also on the brief were Michaela C. Gore, Laney B.
Ellisor, Colin Bradshaw, and Bijal Patel.
   Anna Sortun, Portland, filed the brief for amici curiae
Latino Network, Don’t Shoot Portland, NAACP Corvallis-
Albany Branch #1118, NAACP Eugene-Springfield Branch
#1119, NAACP Salem-Keizer Branch #1166, NAACP
Portland Chapter 1120B, Black Millennial Movement, Unite
Oregon, Immigrant and Refugee Community Organization,
and Urban League of Portland.
  Before Walters, Chief Justice, and Balmer, Flynn,
Duncan, Nelson, and Garrett, Justices, and Baldwin, Senior
Judge, Justice pro tempore.**
    BALMER, J.
   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.




______________
   ** DeHoog, J., did not participate in the consideration or decision of this case.
Cite as 

 (2022)                                                    651

          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, 

, 

, 

 (2020), that the Sixth Amendment prohibits con-
viction 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, 

,

 (2022), and Huggett v. Kelly, 

, 

 (2022) (both decided this day), that raise similar ques-
tions 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 una-
nimity requirement recognized in Ramos, based on its con-
clusion that the rule of Ramos did not apply “retroactively”
to convictions that already were final when the Ramos deci-
sion 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 sus-
tained. Watkins, 

.
    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,

, 

, rev den, 

 (2019).
652                                                            Jones v. Brown

         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 peti-
tioner 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.




     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 peti-
tioner’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 nonunan-
imous verdicts, renders those challenges moot.