holding that, where “each” of the petitioner’s convictions was entered on a nonunanimous jury verdict, he was “enti- tled to post-conviction relief on each of his convictions”
How later courts described this case
- holding that, where “each” of the petitioner’s convictions was entered on a nonunanimous jury verdict, he was “enti- tled to post-conviction relief on each of his convictions”
Written by the judges who cited it.
The opinion
823
On petition for review filed January 5,* considered and under advisement
on February 28; petitioner’s petition for review allowed, decision of Court of
Appeals vacated, case remanded to circuit court for further proceedings
March 30, 2023
ARTURO GUERRERO-PEREZ,
Petitioner on Review,
v.
Brandon KELLY,
Superintendent,
Oregon State Penitentiary,
Respondent on Review.
(CC 19CV50887) (CA A175504) (SC S069865)
525 P3d 1237
Petitioner sought post-conviction relief from his convictions, raising, among
other claims, a claim that all three convictions had been entered in violation of
the constitutional rule announced in Ramos v. Louisiana, 590 US ___, 140 S Ct
1390, 206 L Ed 2d 583 (2020), that the Sixth Amendment prohibits conviction of
a crime by a nonunanimous verdict. The post-conviction court denied relief and
the Court of Appeals affirmed. Petitioner petitioned for review, and his petition
was held in abeyance pending decisions in two similar cases involving nonunan-
imous guilty verdicts that the Court of Appeals had certified to the Supreme
Court, Huggett v. Kelly, 370 Or 645, 523 P3d 84 (2022) and Jones v. Brown, 370
Or 649, 523 P3d 82 (2022). A third similar case, Watkins v. Ackley, 370 Or 604,
523 P3d 604 (2022), was later also certified to the Supreme Court. The Court ulti-
mately decided, in each of the certified cases, that the post-conviction court had
erred in denying relief on the petitioners’ convictions, which had been entered on
nonunanimous verdicts, because a conviction that violates the Ramos jury una-
nimity rule, even if it became final before that rule was announced, constitutes
a “substantial denial” of a constitutional right which “rendered the conviction[s]
void,” and thus requires post-conviction relief under ORS 138.530(1)(a)—unless
one of the procedural defenses in the Post-Conviction Hearings Act has been
raised and sustained. Held: Petitioner is entitled to post-conviction relief, based
on Ramos, on each of his convictions, for the same reasons that the petitioners
in Watkins, Huggett, and Jones were entitled to post-conviction relief from their
convictions, and because petitioner is entitled to that relief, his other claims for
post-conviction relief are moot.
Petitioner’s petition for review is allowed. The decision of the Court of Appeals
is vacated. The case is remanded to the circuit court for further proceedings.
En Banc
______________
* Appeal from Marion County Circuit Court, Patricia A. Sullivan, Senior
Judge. 322 Or App 383, 518 P3d 155 (2022).
824 Guerrero-Perez v. Kelly
Jedediah Peterson, O’Connor Weber LLC, Portland, filed
the petition for petitioner on review.
No appearance contra.
PER CURIAM.
Petitioner’s petition for review is allowed. The decision of
the Court of Appeals is vacated. The case is remanded to the
circuit court for further proceedings.
Cite as 370 Or 823 (2023) 825
PER CURIAM
Petitioner seeks review of the Court of Appeals’
decision, Guerrero-Perez v. Kelly, 322 Or App 383, 518 P3d
155 (2022), which affirmed the circuit court’s denial of his
petition for post-conviction relief. Among other claims, peti-
tioner asserts that, in the underlying criminal case, his
right to a jury trial under the Sixth Amendment to the
United States Constitution was violated when, on each of the
charges against him, he was convicted based on nonunani-
mous jury verdicts. Petitioner bases his argument on Ramos
v. Louisiana, in which the United States Supreme Court
held that the Sixth Amendment prohibits convictions based
on nonunanimous jury verdicts. 590 US ___, 140 S Ct 1390,
206 L Ed 2d 583 (2020).
We held petitioner’s petition for review in abeyance
pending decisions in Huggett v. Kelly, 370 Or 645, 523 P3d 84
(2022), and Jones v. Brown, 370 Or 649, 523 P3d 82 (2022).
In those cases, the state argued that Ramos did not apply
retroactively; in other words, the state argued that persons
whose convictions were final before Ramos issued could not
obtain post-conviction relief based on Ramos. This court
rejected that argument in Watkins v. Ackley, 370 Or 604, 523
P3d 604 (2022), which was decided the same day as Huggett
and Jones. In Watkins, this court held that, when a petitioner
establishes that their conviction was based on a nonunani-
mous jury verdict, the petitioner is entitled to post-conviction
relief (at least in cases like Watkins, Huggett, Jones, and this
one, where the state has not raised, much less proven, any
of the procedural defenses in the Post-Conviction Hearings
Act). 370 Or at 633; see also Huggett, 370 Or at 648 (following
Watkins); Jones, 370 Or at 651 (same).
Because the parties’ arguments regarding petition-
er’s Ramos claim in this case are the same as in Watkins,
we hold that petitioner is entitled to post-conviction relief on
each of his convictions. Given that holding, petitioner’s other
claims for post-conviction relief are moot. See Huggett, 370
Or at 648 n 3 (so holding regarding the petitioner’s claims
that his counsel provided constitutionally inadequate repre-
sentation in connection with convictions based on nonunan-
imous verdicts).
826 Guerrero-Perez v. Kelly
Petitioner’s petition for review is allowed. The deci-
sion of the Court of Appeals is vacated. The case is remanded
to the circuit court for further proceedings.