State v. Ulery
366 Or. 500
Or.2020Background
- Adrian Ulery was tried on two counts of first-degree sexual abuse and opted for a jury trial.
- At trial the jury was instructed (at Ulery’s request) under the then-governing Oregon instruction that a 10-2 or 11-1 vote sufficed to convict; the jury convicted both counts.
- The jury was polled at Ulery’s request, which revealed both guilty verdicts were nonunanimous; Ulery did not object at trial to receipt of those verdicts.
- Ulery appealed, assigning error to the nonunanimous instruction and verdicts; the Court of Appeals affirmed before the U.S. Supreme Court decided Ramos.
- After Ramos v. Louisiana, the State conceded that nonunanimous convictions violate the Sixth Amendment, that Ulery’s claim qualified as plain error under ORAP 5.45(1), and that reversal/remand for a new trial was appropriate; the Oregon Supreme Court accepted the concession, reviewed the error, and reversed and remanded.
Issues
| Issue | State's Argument | Ulery's Argument | Held |
|---|---|---|---|
| Whether an unpreserved Sixth Amendment challenge to a nonunanimous verdict qualifies as plain error on appeal | Conceded the error meets ORAP 5.45(1) and is plain after Ramos | Argued the nonunanimous verdict is constitutional error warranting plain-error review | Yes; the court accepted the concession that the error is plain error |
| Whether Ulery’s request for the uniform instruction constituted invited error barring relief | Implicitly argued the request could be treated as invited error | Argued he merely requested the then-correct statement of Oregon law and did not cause the constitutional error | Invited-error doctrine does not apply; request did not make the constitutional error "about" him |
| Whether the appellate court should exercise its discretion to correct the plain error | Urged the court to exercise discretion and reverse/remand | Sought plain-error review and reversal | Court exercised discretion to review given the grave constitutional error and interests favoring a new trial |
| Whether the nonunanimous verdicts can be deemed harmless beyond a reasonable doubt | Conceded reversal was required (could not prove harmless) | Sought reversal and retrial | Receipt of nonunanimous guilty verdicts cannot be found harmless beyond a reasonable doubt; reversal required |
Key Cases Cited
- Ramos v. Louisiana, 140 S. Ct. 1390 (2020) (held Sixth Amendment requires unanimous jury verdicts and applied that rule to the states)
- Apodaca v. Oregon, 406 U.S. 404 (1972) (previously allowed state nonunanimous convictions; overruled by Ramos)
- Chapman v. California, 386 U.S. 18 (1967) (harmless-error standard for constitutional violations)
- Griffith v. Kentucky, 479 U.S. 314 (1987) (new constitutional rules apply retroactively on direct appeal)
- State v. Vanornum, 354 Or. 614 (2013) (criteria for plain error review under ORAP 5.45(1))
- State v. Zavala, 361 Or. 377 (2017) (discusses appellate application of changed law and retroactivity)