STATE OF OREGON, Plаintiff-Respondent, v. JASON P. HERFURTH, Defendant-Appellant.
Washington County Circuit Court C110010CR; A170610
Washington County Circuit Court
November 18, 2020
307 Or App 534 (2020); 478 P3d 601
Argued and submitted October 20; convictions on Counts 5 through 12 reversed and remanded, remanded for resentencing, otherwise affirmed November 18, 2020
478 P3d 601
For the third time before this court, defendant appeals a judgment of conviction for, among other things, eight counts of second-degree sexual abuse,
Convictions on Counts 5 through 12 reversed and remanded; remanded for resentencing; otherwise affirmed.
Andrew Erwin, Judge.
Morgen E. Daniels, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Lagesen, Presiding Judge, and James, Judge, and Kamins, Judge.
LAGESEN, P. J.
Convictions on Counts 5 through 12 reversed and remanded; remanded for resentencing; otherwise affirmed.
LAGESEN, P.
Defendant appeals a judgment of conviction for one count of third-degree rape,
The basic premise of the state‘s argument is that, to obtain relief from those convictions, defendant was requirеd to raise his challenge in his first appeal (even though, at the time, defendant would not have prevailed on it). In support of that premise, the state invokes the law-оf-the-case doctrine, and points us to several appellate decisions declining to consider issues raised for the first time in a successive appeal, whеn those issues could have been raised in an initial or earlier appeal.
Ordinarily, it is true, we, like other appellate courts, refrain from considering issues that could have been raised in an initial appeal but were not. See, e.g., State v. Bowen, 355 Or 469, 473-74, 326 P3d 1162 (2014). This, however, is not an ordinary situation. The Supreme Court‘s decision in Ramos upended 48 years of precеdent holding that the unanimity requirement of the jury trial provision of the Sixth Amendment was not incorporated against the states. See Ramos, 590 US at ___, 140 S Ct at 1397-98. For defendant to have raised the issue any еarlier would have been an act of futility, something not in play in the cases to which the state directs our attention.
Although there are some procedural differenсes, this case, in a lot of ways, resembles Rains v. Stayton Builders Mart, Inc., 289 Or App 672, 410 P3d 336 (2018). There, the trial court had declined to apply the statutory cap on noneconomiс damages in
On remand, recognizing that Horton was fatal to their contention that the damages cap violated
Rejecting the law-of-the-case argument, we noted that that doctrine only bars consideration оf an issue when an appellate court previously “has made a binding ‘ruling or decision‘” on the issue. Id. at 680-81 (quoting Kennedy v. Wheeler, 356 Or 518, 524, 341 P3d 728 (2014)). Rejecting the waiver argument, we looked to the Supreme Court‘s decision in Kentner v. Gulf Ins. Co., 298 Or 69, 73-74, 689 P2d 955 (1984), to identify the considerations that come into play in evaluating whether to consider an issue that was not raised at the first available opportunity. Rains, 289 Or App at 681. We noted that the rule requiring that issues ordinarily be raised in an “original hearing” is to “(1) prevent a party from appealing in a piecemeal manner, (2) keep a party from shifting its position, and (3) promote the finality of appellate courts’ decisions and promote judicial efficiency.” Id. We then concluded that none of thosе considerations would be undermined by considering the plaintiffs’ late-raised
As in Rains, the law-of-the-case doctrine does not bar consideration of defendant‘s Sixth Amendment claim because no appellate court has ruled on that claim in the context of this case. And, as in Rains, therе has been a significant change in the legal landscape. Given the significant change in law effected by Ramos, we do not perceive defendant‘s present challenge to the verdicts as encouraging piecemeal litigation or undercutting finality or judicial efficiency, and the state has not explained how that might be the case—let alone how those considerations would outweigh remedying Oregon‘s violation of defendant‘s federal constitutional right to have the jury reach unanimous agreemеnt on his guilt. As noted, had defendant raised the issue any earlier, longstanding case law would have precluded him from prevailing. Defendant‘s decision to raise the issue now has nоt resulted in piecemeal litigation because, in each appeal, defendant has raised other nonfrivolous grounds for appeal. And, as should be evident, this сase has never reached finality. In light of these considerations, we reject the state‘s argument that defendant has raised this issue too late.
Having concluded that it is nоt too late for defendant to raise the issue, we conclude that defendant is entitled to reversal of his convictions on Counts 5 through 12 for the reasons stated in the Suprеme Court‘s decision in State v. Ulery, 366 Or 500, 464 P3d 1123 (2020). In so doing, we reiterate the Supreme Court‘s point that, where, as here, a significant change in law has taken place while an appeаl is pending, we reverse because case law requires us to apply “the law at the time of the appellate decision,” not because the trial court mаde a mistake in applying then-existing law. Id. at 503; see also State v. Zavala, 361 Or 377, 380 n 1, 393 P3d 230 (2017) (“When used to describe a trial court‘s ruling that was not erroneous under existing law, the term ‘plain error’ is a misnomer; it does not imply any mistake by a trial court. Instead, it is a label that an appellate court uses when it decides that a party is entitled to a benefit of a change in the law.“).
This disposition obviаtes the need to address defendant‘s other assignments of error, both of which challenge the trial court‘s decision to impose consecutive sentences.1
Convictions on Counts 5 through 12 reversed and remanded; remanded for resentencing; otherwise affirmed.