State v. Herfurth, 478 P.3d 601

Defendant Jason P. Herfurth was convicted of one count of third‑degree rape (Count 3, unanimous) and eight counts of second‑degree sexual abuse (Counts 5–12, based on nonunanimous jury verdicts).
This is the third appeal in the case; two earlier appeals produced remands for resentencing, but no appellate court had previously decided the nonunanimous‑verdict issue.
For the first time on this appeal, Herfurth challenged the trial court’s entry of convictions on Counts 5–12 as based on nonunanimous juries in light of Ramos v. Louisiana.
The State conceded that Ramos required unanimous jury verdicts and therefore the Counts 5–12 convictions violated the Sixth Amendment, but argued the claim was untimely and barred by the law‑of‑the‑case doctrine.
The court held the law‑of‑the‑case doctrine did not bar review given Ramos’s intervening change in law, reversed Counts 5–12, and remanded for resentencing; Count 3 and its conviction remained intact (defendant only challenged the sentence on Count 3).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the law‑of‑the‑case doctrine bars raising a Ramos nonunanimity claim on a successive appeal	Herfurth should have raised the issue in his first appeal; law‑of‑the‑case/efficiency principles bar late claims	Ramos was an intervening change in law; raising earlier would have been futile; no prior appellate ruling on the issue	Not barred: law‑of‑the‑case does not preclude review because no prior appellate ruling and Ramos changed controlling law
Whether convictions based on nonunanimous jury verdicts violate the Sixth Amendment	State conceded Ramos requires unanimity and renders the convictions unconstitutional	Herfurth argued he is entitled to reversal under Ramos and applicable Oregon precedent	Convictions on Counts 5–12 violated the Sixth Amendment and were reversed
Appropriate remedy (reversal/remand/resentencing)	State accepted Ramos‑based relief (remand)	Herfurth sought reversal of Counts 5–12 and remand for resentencing	Counts 5–12 reversed and remanded; case remanded for resentencing
Effect on Count 3 and other sentencing claims	Count 3 was decided by a unanimous jury and is unaffected; other sentencing claims need not be reached now	Herfurth only assigned error to the sentence on Count 3; sought relief on Counts 5–12	Count 3 conviction stands; the court did not address other sentencing assignments here

Ramos v. Louisiana, 140 S. Ct. 1390 (2020) (held the Sixth Amendment jury‑unanimity requirement applies to the states)
State v. Ulery, 366 Or 500 (2020) (applies the rule that appellate courts apply the law as of the time of their decision when an intervening change in law occurs)
Rains v. Stayton Builders Mart, Inc., 289 Or App 672 (2018) (refused to apply law‑of‑the‑case where intervening Supreme Court decision changed governing analysis)
Kentner v. Gulf Ins. Co., 298 Or 69 (1984) (sets factors for considering issues not raised at the first available appellate opportunity)
Horton v. OHSU, 359 Or 168 (2016) (explained a significant change in constitutional analytic framework that warranted reconsideration on remand)
State v. Bowen, 355 Or 469 (2014) (discusses ordinary rule that issues should be raised in the initial appeal)
State v. Zavala, 361 Or 377 (2017) (reinforces that appellate courts may apply intervening changes in law to pending appeals)