Mandell v. Miller

• Docket Number: A177645
• Decision Date: 06 July 2023
• Citation: 326 Or.App. 807
• Parties: DONALD LEE MANDELL, Petitioner-Appellant, v. Jamie MILLER, Superintendent, Snake River Correctional Institution, Defendant-Respondent.
• Court: Oregon Court of Appeals

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326 Or.App. 807

DONALD LEE MANDELL, Petitioner-Appellant, v. Jamie MILLER, Superintendent, Snake River Correctional Institution, Defendant-Respondent.

A177645

Court of Appeals of Oregon

July 6, 2023

Submitted March 10, 2023

Malheur County Circuit Court 20CV31010; J. Burdette Pratt Senior Judge.

Jedediah Peterson and O'Connor Weber LLC filed the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Erin K. Galli, Assistant Attorney General, filed the briefs for respondent.

Before Lagesen, Chief Judge, and Kamins, Judge, and Armstrong, Senior Judge.

KAMINS, J.

Petitioner appeals from a judgment denying his petition for post-conviction relief (PCR), raising three assignments of error, each of which relates to the fact that, as permitted by the law at the time, the jury that convicted petitioner was instructed that only 10 jurors needed to agree on his guilt. The record does not indicate, however, whether the jury in fact reached unanimity, because neither defense counsel nor the prosecutor requested that the jurors be polled. Because we conclude that petitioner is not entitled to relief in those circumstances, we affirm.

We accept the post-conviction court's supported implicit and explicit factual findings and review for legal error. Green v. Franke, 357 Or. 301, 312, 350 P.3d 188 (2015). Petitioner was convicted in 2016 of two counts of sexual abuse in the first degree, and the judgment of conviction became final the following year. In 2018 petitioner initiated a post-conviction proceeding on allegations unrelated to this case, which was subsequently denied.^[1] See Mandell v. Cain, 315 Or.App. 471, 500 P.3d 762 (2021), rev den, 369 Or. 507 (2022) (affirming that denial). Petitioner filed the instant petition in 2020, after the United States Supreme Court held that the Sixth Amendment to the United States Constitution requires that a jury reach a unanimous verdict to convict someone of a felony. Ramos v. Louisiana, 590 US, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020).

Petitioner raised three claims for relief, which correspond to his three assignments of error on appeal. The first claim contended that his trial counsel rendered inadequate and ineffective assistance of counsel, in violation of his rights under Article 1, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution, by not objecting to the nonunanimous jury instruction and not requesting that the jury be polled. That claim is foreclosed by our decision in Smith v. Kelly, where we held that trial counsel do not perform deficiently by failing to raise the unanimity issue before Ramos was litigated. 318 Or.App. 567, 569, 508 P.3d 77 (2022), rev den, 370 Or. 822 (2023) ; see also Aaron v. Kelly, 325 Or.App. 262, 266, 528 P.3d 1215 (2023) (concluding that trial counsel's pre-Ramos decision not to challenge the nonunanimous jury instruction and not to request a jury poll was reasonable).

Petitioner's remaining assignments of error challenge the PCR court's denial of standalone claims that his convictions were obtained in violation of the unanimity rule announced in Ramos. We begin our discussion with a brief overview of the pertinent law. As relevant here, the Post-Conviction Hearings Act provides that to obtain relief, petitioners must establish that there was a "substantial denial" of their constitutional rights in the proceedings that resulted in their conviction. ORS 138.530(1)(a). The Supreme Court has recently interpreted that phrase to mean that the denial of a constitutional right must have been "(1) consequential in the criminal justice proceeding; and (2) offensive to our judicial sense of fairness[.]" Watkins v. Ackley, 370 Or. 604, 630, 523 P.3d 86 (2022) (internal quotation marks omitted). The court then applied that interpretation to conclude that petitioners who were convicted by nonunanimous jury verdicts are entitled to post-conviction relief because such convictions "violate[] our sense of what is fundamentally fair in a criminal proceeding[.]"/d. at 633.

The court did not address, however, whether petitioners are likewise entitled to relief when the underlying jury verdict may, or may not, have been unanimous. In Watkins, the erroneous jury instruction was clearly "consequential in the criminal justice proceeding," since without it, the petitioner would not have been convicted. Id. at 608 (noting that all four of the petitioner's convictions were based on nonunanimous verdicts). The question for us, then, is whether the same is true in this case, where the record is silent on whether the jury's verdicts were, in fact, unanimous. Because petitioner seeks PCR, he bears the burden to prove that the instruction was consequential to his case. ORS 138.620(2) ("The burden of proof of facts alleged in the petition shall be upon the petitioner to establish such facts by a preponderance of the evidence.").

Turning to the parties' arguments, petitioner offers evidence presented by the state in a different case that approximately two thirds of jury trials from 2001 to 2018 included at least one nonunanimous conviction. In petitioner's view, that shows that it is more likely than not that one or both of his convictions were based on a nonunanimous verdict. The superintendent responds that such general statistics do not indicate that either-let alone both-of the verdicts in petitioner's trial were actually nonunanimous. The superintendent further points out that accepting petitioner's argument would mean presuming prejudice with respect to every conviction in every case where the jury was not polled, thereby relieving petitioners of their burden of proof.

We agree with the superintendent. General statistical information about the criminal justice system as a whole does not establish what happened in petitioner's particular case. See McDonnell v. Premo, 309 Or.App. 173, 187 483 P.3d 640 (2021), rev den, 369 Or. 507 (2022) ("[A]ctual prejudice must be shown." (Emphasis in original.)); Id. at 192 (presuming prejudice "is not permissible in the post-conviction context under Oregon law"). Because there is nothing in this record to suggest that the verdicts in petitioner's case were actually nonunanimous, we conclude that petitioner has not met his burden to prove that the nonunanimous jury instruction was...