State v. Bradley, 483 P.3d 717

Defendant Bradley was convicted of first-degree sexual abuse (Counts 12 & 13) and first-degree sodomy (Count 14); the jury was instructed that a verdict could be reached with 10 of 12 jurors and returned nonunanimous guilty verdicts on those counts.
Defendant did not object at trial to the nonunanimous verdicts.
After trial but before this court’s original opinion, the U.S. Supreme Court decided Ramos v. Louisiana, holding the Sixth Amendment jury-unanimity requirement applies to the states.
In this third appeal, and for the first time on reconsideration, defendant argued (and the State conceded) that, under Ramos, the trial court plainly erred in instructing and accepting nonunanimous verdicts.
The Court of Appeals, relying on Ramos and Oregon precedent (notably Ulery and Herfurth), granted reconsideration, accepted the concession, found plain error, reversed convictions on Counts 12–14, and remanded for a new trial.
The court declined to withdraw its earlier opinion addressing merger of Counts 12 and 13, because that issue is likely to recur on remand.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Bradley)	Held
Whether the trial court erred by instructing the jury it could convict by a nonunanimous verdict and by accepting nonunanimous guilty verdicts	Trial court erred under Ramos; State concedes error and requests reversal	Nonunanimous verdicts violate Ramos; plain error review warranted despite no objection	Court accepted concession, found plain error, reversed Counts 12–14 and remanded for new trial
Whether defendant may raise a Ramos-based unanimity claim for the first time on his third appeal	State concedes Herfurth permits consideration; asks court to reach claim	Argues Herfurth and change in law justify raising issue first in third appeal and warrants waiver of briefing rules	Court invoked Herfurth and ORAP 1.20(5) to consider the claim (change in law and lack of finality weigh in favor)
Whether the court should withdraw its earlier opinion addressing merger of Counts 12 & 13	State asked withdrawal of prior opinion	Bradley asked withdrawal as well	Court declined to withdraw prior opinion because merger issue may recur on remand; prior analysis remains useful
Whether the court should exercise discretion to correct unpreserved error (plain-error review)	State conceded plain error; urged correction and reversal	Asked for plain-error relief and new trial	Court followed Ulery and exercised discretion to correct plain error and remit for new trial

Ramos v. Louisiana, 140 S. Ct. 1390 (2020) (held Sixth Amendment jury-unanimity requirement applies to the states)
State v. Ulery, 366 Or 500 (2020) (Oregon Supreme Court treated acceptance of nonunanimous verdict as plain error and corrected it)
State v. Herfurth, 307 Or App 534 (2020) (Court of Appeals allowed raising Ramos-based unanimity claim for first time on third appeal)
State v. Bradley, 307 Or App 374 (2020) (prior Bradley opinion addressing merger of Counts 12 and 13)
State v. Merrill, 309 Or App 68 (2021) (declined to withdraw prior opinion addressing merger when convictions reversed and remanded)