State v. Enloe
Decision Date | 29 December 2021 |
Docket Number | A171067 |
Citation | 316 Or.App. 680,502 P.3d 1213 (Mem) |
Parties | STATE of Oregon, Plaintiff-Respondent, v. Carl Daniel ENLOE, aka Carl Enloe, Defendant-Appellant. |
Court | Oregon Court of Appeals |
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Shawn Wiley, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.
Defendant was convicted after a jury trial of possession of a weapon by an inmate, ORS 166.275 (Count 1), and supplying contraband, ORS 162.185 (Count 2). The jury voted unanimously to convict on both counts. The jury, however, voted 11-1 on the question whether the contraband alleged in Count 2 was a dangerous weapon, an offense subcategory alleged by the state.1 The jury also found one sentence-enhancement fact (that defendant was on probation, parole, or post-prison supervision when he committed the crimes) by a general "yes" vote. Both parties declined the trial court's invitation to have the jury polled as to that question. The court merged the jury's guilty verdict on Count 2 into the conviction on Count 1 and imposed an upward durational departure sentence on Count 1 based on the enhancement fact found by the jury.
On appeal, defendant contends that the trial court erred in instructing the jury that it could return nonunanimous verdicts as to both the charged offenses and the charged sentence-enhancement facts. Although the court's jury instruction was error under Ramos v. Louisiana , 590 U.S. ––––, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020), contrary to defendant's argument otherwise, that error is not structural and is harmless with respect to the jury's unanimous verdict on Count 1 and its unanimous verdict on the base offense of Count 2, that is, absent the "dangerous weapon" subcategory allegation. See State v. Flores Ramos , 367 Or. 292, 478 P.3d 515 (2020).
The state concedes, and we agree, that the nonunanimous verdict instruction renders the jury's finding on the offense subcategory allegation of Count 2 invalid in light of Ramos . See State v. Huynh , 315 Or. App. 456, 458, 500 P.3d 767 (2021) ( ); OAR 213-018-0070 ( ). The state contends, however, that the invalidity of that finding is "legally inconsequential," because the court merged the verdict on Count 2 with the conviction on Count 1 and imposed sentence only on Count 1. Therefore, the state reasons, the invalid finding provides no basis for relief on appeal.
We disagree that the invalid finding has no legal effect. To illustrate: A later reversal of defendant's conviction on Count 1 (for example, on review by the Supreme Court or on post-conviction review) would result in the "unmerging" of Counts 1 and 2, such that the trial court could impose judgment and sentence on Count 2. See State v. Cockrell , 170 Or. App. 29, 31, 10 P.3d 960 (2000) (...
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State v. Moscote-Saavedra
...verdicts, is harmless beyond a reasonable doubt. State v. Flores Ramos , 367 Or. 292, 334, 478 P.3d 515 (2020) ; State v. Enloe , 316 Or.App. 680, 681-82, 502 P.3d 1213 (2021) ( Ramos jury unanimity requirement applies to jury findings on subcategory factors); State v. Huynh , 315 Or.App. 4......