Peeler v. Reyes

                                       110

 Submitted August 8, affirmed September 13, 2023, petition for review denied
                       January 12, 2024 (

)


                   KENNETH PEELER, JR.,
                      Petitioner-Appellant,
                                v.
                          Erin REYES,
                        Superintendent,
                Two Rivers Correctional Institution,
                     Defendant-Respondent.
                  Umatilla County Circuit Court
                      20CV27802; A178342
                                   

     Petitioner appeals from a judgment denying his petition for post-conviction
relief. He argues that his guilty plea to kidnapping, rape, and sodomy charges
was not knowing because the federal law regarding unanimous jury verdicts
changed after he pled guilty. See Ramos v. Louisiana, 

, 

,

 (2020) (the Sixth Amendment requires jury unanimity in both
state and federal criminal trials); see also Watkins v. Ackley, 

, 

 (2022) (Ramos applies retroactively in state post-conviction proceedings). At a
pretrial hearing in the underlying case, the trial court discussed with petitioner
the potential prison time that he could face if he were convicted on all charges by
a jury and that, consistent with existing law at the time, he could be convicted
if 10 of the 12 jurors found him guilty. Petitioner accepted a plea offer from the
state, waiving his right to a jury trial. Held: Because the trial court correctly
advised petitioner about his Sixth Amendment jury trial right as it was under-
stood when he pled guilty, his waiver of his Sixth Amendment right was knowing
and therefore valid. Petitioner’s conviction was not based on a nonunanimous
jury verdict, as it was in Watkins, but on a guilty plea. The question whether his
waiver of a federal right was knowing is a federal question controlled by federal
law. Brady v. United States, 

, 

, 

 (1970),
makes clear that the validity of petitioner’s waiver of his jury trial right is mea-
sured at the time he pled guilty.
    Affirmed.



    J. Burdette Pratt, Senior Judge.
   Margaret Huntington and O’Connor Weber LLC filed the
briefs for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jordan R. Silk, Assistant Attorney
General, filed the brief for respondent.
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   Before Lagesen, Chief Judge, and Kamins, Judge, and
Kistler, Senior Judge.
  KISTLER, S. J.
  Affirmed.
112                                              Peeler v. Reyes

         KISTLER, S. J.
         In 2007, petitioner pled guilty to kidnapping, rape,
and sodomy. In 2021, he sought post-conviction relief. He
claimed, among other things, that his plea had not been know-
ingly made because the law regarding unanimous jury ver-
dicts changed after he pled guilty. The post-conviction court
entered a judgment denying petitioner’s claims. We affirm.
          In setting out the facts, we put the facts in context
by describing the various legal rules regarding petitioner’s
state and federal constitutional rights to a jury trial that
preceded and followed his guilty plea. As originally adopted,
Article I, section 11, of the Oregon Constitution guaranteed
the right to an impartial jury in criminal trials but did not
specify whether the jury’s verdict had to be unanimous. See
State v. Pipkin, 

, 

 (2013) (discuss-
ing the history of Article I, section 11). In 1934, Oregon vot-
ers approved a legislatively referred amendment to Article I,
section 11, that for the first time expressly addressed jury
unanimity. 

 The amendment provided that, in state crim-
inal cases, “ ‘ten members of the jury may render a verdict of
guilty or not guilty, save and except a verdict of guilty of first
degree murder, which shall be found only by a unanimous
verdict.’ ” See 

 (quoting Article I, section 11, as amended).
         In 1972, the United States Supreme Court consid-
ered whether Oregon’s constitutional provision authorizing
nonunanimous juries was consistent with a defendant’s Sixth
Amendment right to a jury trial. See Apodaca v. Oregon, 

, 

, 

 (1972). A majority of
the Court held that it was. See 

 (plurality opin-
ion) (reasoning that unanimity is not an essential feature
of the Sixth Amendment); Johnson v. Louisiana, 

, 

, 

 (1972) (Powell, J.,
concurring in the judgment in Apodaca) (reasoning that,
although the Sixth Amendment requires jury unanimity in
federal criminal trials, the unanimity requirement is not
such an essential feature of the right that it is incorporated
against the states).
        In 2007, the state charged petitioner with four fel-
onies: two counts of first-degree kidnapping, one count of
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first-degree rape, and one count of first-degree sodomy.
During a pretrial hearing, the trial court discussed with
petitioner the potential prison time that he could face if he
were convicted on all four charges. After that hearing, the
state made a plea offer to petitioner to dismiss one of the
charges, which reduced the mandatory minimum prison sen-
tence petitioner faced. The state also agreed to recommend
a 300-month sentence. That recommendation, if accepted,
would allow petitioner to avoid the possibility of upward
departure sentences and the like. See State v. Speedis, 

, 

 (2011) (discussing departure
sentences).
         After consulting with his trial counsel, petitioner
decided to accept the state’s offer. He signed a plea petition
that stated that “I understand that by pleading guilty * * *
I am waiving my righ[t] to * * * a speedy and public trial
by jury.”1 (Some capitalization omitted.) The plea petition
did not list the specific attributes of the jury trial right
that petitioner was waiving. However, when petitioner pled
guilty in 2007, Apodaca was the last word on the scope of a
criminal defendant’s Sixth Amendment jury trial right. And
petitioner submitted a declaration in support of his post-
conviction petition in which he stated that, consistently with
Apodaca, the trial court and his counsel had told him that,
if he chose to go to trial, he could be convicted if 10 of the 12
jurors found him guilty.2
        Before accepting petitioner’s guilty plea, the trial
court engaged in a colloquy with petitioner to ensure that he
had read the plea petition, discussed it with his counsel, and
understood it. The court then accepted petitioner’s guilty
     1
       The plea petition also described other constitutional rights that petitioner
was waiving by pleading guilty.
     2
       The only evidence in the record that petitioner understood when he pled
guilty that he could be convicted by a nonunanimous jury comes from petitioner’s
post-conviction declaration. In ruling on petitioner’s claims, the post-conviction
court “f[ou]nd petitioner’s testimony [in his declaration] to be not credible.”
However, in explaining why it disagreed with petitioner’s claim that he had not
knowingly waived his right to a jury, the post-conviction court started from the
proposition that, when petitioner pled guilty in 2007, he “believed that he could
be convicted by a 10-2 guilty verdict.” The court thus appears to have accepted or
at least assumed the truth of one statement in petitioner’s declaration. We follow
the same course.
114                                             Peeler v. Reyes

plea to one count each of kidnapping, rape, and sodomy and
imposed the recommended 300-month sentence. Based on
petitioner’s plea, the trial court entered a judgment of con-
viction, which petitioner appealed. That appeal was resolved
in 2008, and petitioner’s conviction became final that year.
Petitioner filed his first petition for post-conviction relief in
2009, which was denied in 2010.
         Thirteen years after petitioner pled guilty and
12 years after his conviction became final, the Court
overruled Apodaca. Ramos v. Louisiana, 

, 

, 

 (2020). It held that the Sixth
Amendment requires jury unanimity in both state and fed-
eral criminal trials. 

 As a matter of federal law, Ramos
announced a “new constitutional rule” that applied to all
cases then pending on direct appeal. See Teague v. Lane,

, 

, 

 (1989)
(plurality) (describing which rulings constitute “new consti-
tutional rules”); Griffith v. Kentucky, 

, 

, 

 (1987) (holding that new consti-
tutional rules apply to all cases pending on direct appeal
when the new rule is announced). The Court later held that
the new constitutional rule it announced in Ramos does not
apply retroactively in federal proceedings to convictions that
became final before Ramos was decided. Edwards v. Vannoy,
___ US ___, 

, 

 (2021).
         The Court’s holding in Edwards—that Ramos does
not apply retroactively in the federal courts—does not pre-
clude states from applying Ramos retroactively in state
court proceedings. See Danforth v. Minnesota, 

, 

, 

 (2008); Watkins v.
Ackley, 

, 607 n 2, 612, 

 (2022) (describ-
ing Danforth’s reasoning). Following the reasoning in
Danforth, the Oregon Supreme Court held in 2022 that the
Sixth Amendment right to a unanimous verdict announced
in Ramos applies retroactively in state post-conviction pro-
ceedings to convictions that became final before Ramos was
decided. Watkins, 

.
       The final convictions challenged in Watkins and the
two companion cases decided the same day were all based
on nonunanimous jury verdicts. See Watkins, 

;
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Huggett v. Kelly, 

, 

 (2022); Jones
v. Brown, 

, 

 (2022). And, once the
court concluded that Ramos applied retroactively, it neces-
sarily followed that the challenged convictions in those cases
violated the Sixth Amendment, as interpreted in Ramos,
unless some procedural bar prevented the petitioners from
asserting their Sixth Amendment claims. See Watkins, 

.
         The issue in this case differs from the issue in
Watkins, Huggett, and Jones. In this case, petitioner’s con-
viction is not based on a nonunanimous jury verdict.
Rather, his conviction is based on a guilty plea. And the
question this case poses is whether that difference matters.
Petitioner argues that, because Ramos applies retroactively,
his plea was not “knowing.” Specifically, petitioner contends
that he was unaware when he pled guilty in 2007 that, as
Ramos later held, the Sixth Amendment requires a unani-
mous jury verdict in state criminal cases. The superinten-
dent responds that, as a matter of federal law, the question
whether a defendant knowingly waived a federal constitu-
tional right is measured at the point in time that he or she
pled guilty. A later change in the law will not invalidate an
otherwise valid guilty plea unless, of course, the defendant’s
counsel was constitutionally inadequate for failing to fore-
see the change.3
         In resolving the parties’ dispute, we note, as an
initial matter, that “[t]he question of a waiver of a feder-
ally guaranteed constitutional right is, of course, a federal
question controlled by federal law.” Brookhart v. Janis, 

, 

, 

 (1966). That is, we
look to federal law in deciding whether petitioner’s waiver
of his Sixth Amendment right to a jury trial in 2007 was

    3
      The superintendent also relies on a line of authority holding that a plea will
be knowing if a defendant is generally aware that he or she is waiving the right
to have a jury decide the case; the defendant need not know the specifics of the
right, such as whether the verdict must be unanimous, for the plea to be know-
ing. Whatever its merits, that line of authority does not apply here. Although the
plea petition referred generically to waiving the right to a trial by jury, the trial
court and petitioner’s counsel told him that the verdict need not be unanimous.
In those circumstances, the only applicable argument that the superintendent
advances is the one set out above.
116                                                       Peeler v. Reyes

“knowing” and thus valid.4 In our view, the Court’s decision
in Brady v. United States, 

, 

, 

 (1970), provides a complete answer to that question.
We accordingly discuss Brady in greater detail than usual
before explaining how that decision applies here.
         The petitioner in Brady pled guilty in 1959 to kid-
napping in violation of 

(a). 

. When the petitioner pled guilty, section 1201(a) pro-
vided that a defendant convicted of that crime was subject to
the death penalty if the jury recommended it. 

 However,
section 1201(a) did not provide for the death penalty if a
defendant was convicted of kidnapping after either a bench
trial or pleading guilty. See United States v. Jackson, 

, 

, 

 (1968) (inter-
preting section 1201(a)). Section 1201(a), as interpreted by
the Court in Jackson, made the price of exercising the Sixth
Amendment right to a jury trial the risk that the jury would
recommend the death penalty—a risk that was not present
if the defendant agreed to a bench trial or pled guilty. See

 Accordingly, the Court held that “[w]hatever the power
of Congress to impose the death penalty for violation of the
Federal Kidnapping Act, Congress cannot impose such a
penalty in a manner that needlessly penalizes the assertion
of a constitutional right.” 

. As a result, the Court
severed the death penalty clause in section 1201(a) from the
remainder of the statute. 

.
          At roughly the same time that the Court was decid-
ing Jackson in 1968, the petitioner in Brady filed a petition
under 

, which provides for collateral
relief from federal criminal convictions. See Brady, 

. Brady argued, among other things, that his 1959
plea was not voluntary because, at that time, section 1201(a)
unconstitutionally coerced defendants to forgo a jury trial
and plead guilty. He also argued that his plea was not intel-
ligently made because he was unaware when he pled guilty
that nine years later the Court would hold that a defendant
charged with violating section 1201(a) could exercise his or
her Sixth Amendment right to a jury trial without facing

   4
     Petitioner does not claim that his plea was not voluntary or intelligent.
Rather, he claims only that his plea was not knowing.
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the death penalty. In considering Brady’s petition, the Court
started from the proposition that its decision in Jackson
applied to Brady’s challenge to his 1959 guilty plea without
discussing retroactivity. See id. at 746-48.5
          On the first issue that Brady raised, the Court
explained that Jackson did not rule “that all pleas of guilty
encouraged by the fear of a possible death sentence are
involuntary pleas.” Id. at 747. And it noted that the federal
district court had correctly found that Brady’s guilty plea
was primarily motivated by considerations other than the
risk of a death sentence if he exercised his right to a jury
trial. Id. at 747-49.
         On the second issue, the Court noted that “[i]t is
true that Brady’s counsel advised him that § 1201(a) empow-
ered the jury to impose the death penalty” and that nine
years later the Court held in Jackson that a defendant could
exercise his or her Sixth Amendment right to a jury trial
without risking the possibility of a death sentence. Id. at
756. The Court found, however, that the later change in the
law did not invalidate Brady’s plea. The Court reasoned:
       “Often the decision to plead guilty is heavily influ-
    enced by the defendant’s appraisal of the prosecution’s
    case against him and by the apparent likelihood of secur-
    ing leniency should a guilty plea be offered and accepted.
    Considerations like these frequently present imponderable
    questions for which there are no certain answers; judg-
    ments may be made that in the light of later events seem
    improvident, although they were perfectly sensible at the
    time. The rule that a plea must be intelligently made to
    be valid does not require that a plea be vulnerable to later
    attack if the defendant did not correctly assess every rel-
    evant factor entering into his decision. A defendant is not

     5
       In Brady, the Court applied its decision in Jackson to a conviction that
became final several years earlier without discussing retroactivity. See Brady,

. Brady may have viewed Jackson as merely applying settled
federal principles to a new factual situation, which would not trigger federal ret-
roactivity analysis. See 

 (stating that Jackson “neither fashioned a new
standard for judging the validity of guilty pleas nor mandated a new application
of the test theretofore fashioned by the courts”); Chavez v. State of Oregon, 

, 

 (2019) (explaining that, under federal law, a decision
that does not announce a new rule but merely applies settled principles to new
factual situations will apply to final convictions without any need to engage in a
retroactivity analysis).
118                                               Peeler v. Reyes

   entitled to withdraw his plea merely because he discovers
   long after the plea has been accepted that his calculus mis-
   apprehended the quality of the State’s case or the likely
   penalties attached to alternative courses of action. More
   particularly, absent misrepresentation or other imper-
   missible conduct by state agents, * * *, a voluntary plea of
   guilty intelligently made in the light of then applicable law
   does not become vulnerable because later judicial decisions
   indicate that the plea rested on a faulty premise. A plea
   of guilty triggered by the expectations of a competently
   counseled defendant that the State will have a strong
   case against him is not subject to later attack because the
   defendant’s lawyer correctly advised him with respect to
   the then existing law as to possible penalties but later pro-
   nouncements of the courts, as in this case, held that the
   maximum penalty for the crime in question was less than
   was reasonably assumed at the time the plea was entered.”

 (citation omitted).
         We have quoted the Court’s reasoning in Brady at
length because three propositions it noted are relevant here.
First, a guilty plea reflects a complex decision to admit com-
mitting the charged offenses in open court—a decision that
can reflect such variables as the strength of the state’s case,
the related likelihood that the defendant may not prevail at
trial, and the prospect of a reduced sentence if the defen-
dant admits his or her guilt. Second, given the complexity
of that decision, the relevant question is whether the defen-
dant was aware of the law as it existed at the time that he or
she made the decision to plead guilty. The third proposition
is related to the second: Later changes in the law, such as
removing the possibility of the death sentence if a defendant
exercised his or her Sixth Amendment right to a jury trial,
will not invalidate an earlier plea. Rather, the question is
whether the defendant made an informed decision based on
the law as it was understood at that time.
         In this case, it is undisputed that the trial court
accurately advised petitioner about his Sixth Amendment
rights as they were understood when he pled guilty in 2007.
Indeed, the trial court would have misrepresented the
law, as it was then understood, if the court had told peti-
tioner that only a unanimous jury could find him guilty if
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he elected to go to trial in 2007. To be sure, we now know
that Ramos requires jury unanimity in state criminal pro-
ceedings and that Ramos applies retroactively in Oregon.
However, Brady makes clear that petitioner’s guilty plea—
specifically, his waiver of his Sixth Amendment right to a
jury trial—was knowing and intelligent because he was cor-
rectly informed about the scope of that Sixth Amendment
right, as the United States Supreme Court then interpreted
it, when he entered his plea in 2007.
         One other point remains. Petitioner argues that con-
stitutionally adequate counsel would have foreseen in 2007
that Apodaca could be overruled in the future and advised
him of that possibility before he pled guilty. That argument
faces multiple hurdles. Among them is our holding in Smith
v. Kelly, 

, 

 (2022), rev den,

 (2023), that counsel was not constitutionally defi-
cient for failing to advise his client in 2015 that Apodaca
could be overruled. That holding applies with even greater
force to the adequacy of counsel’s advice in 2007.
        Affirmed.