The opinion
118 December 24, 2025 No. 1130
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
ARACELY HERNANDEZ,
Petitioner-Appellant,
v.
Nichole BROWN,
Superintendent,
Coffee Creek Correctional Institution,
Defendant-Respondent.
Washington County Circuit Court
22CV02663; A184044
Patricia A. Sullivan, Senior Judge.
Submitted November 24, 2025.
Jedediah Peterson and Equal Justice Law filed the brief
for appellant.
Dan Rayfield, Attorney General, Benjamin Gutman,
Solicitor General, and Rebecca M. Auten, Assistant Attorney
General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, Egan, Judge, and Pagán,
Judge.
PER CURIAM
Affirmed.
Nonprecedential Memo Op: 346 Or App 118 (2025) 119
PER CURIAM
Petitioner appeals a judgment denying post-
conviction relief. A jury found defendant guilty of first-
degree assault, second-degree assault, and unlawful use of
a weapon (UUW). The recorded verdicts were 11-1, 12-0, and
12-0, respectively. A judgment of conviction was entered for
first-degree assault and UUW; the second-degree assault
verdict merged. Once the judgment of conviction was final,
petitioner sought post-conviction relief, asserting a stand-
alone claim based on the jury instruction on nonunanimous
guilty verdicts. The post-conviction court granted relief as
to the first-degree assault conviction and otherwise denied
relief. In her sole assignment of error, petitioner contends
that the post-conviction court erred in denying relief as to
the second-degree assault and UUW charges. For the fol-
lowing reasons, we affirm.
The Sixth Amendment to the United States
Constitution requires that a jury reach a unanimous verdict
to convict someone of a serious offense. Ramos v. Louisiana,
590 US 83, 93, 140 S Ct 1390, 206 L Ed 2d 583 (2020). Prior
to Ramos, as to most serious offenses, the practice in Oregon
was to instruct juries that only 10 jurors needed to agree on
guilt, so Ramos resulted in a wave of litigation regarding
when relief is available for past convictions entered in cases
where the erroneous instruction was given.
As relevant here, when it is established that a con-
viction for a serious offense was entered on a nonunanimous
verdict, the proceeding must be recognized as fundamentally
unfair, and post-conviction relief must be granted. Watkins
v. Ackley, 370 Or 604, 633, 523 P3d 86 (2022). Conversely,
when nonunanimity is not established—usually because
there was no jury poll—post-conviction relief is unavailable.
State v. Dilallo, 367 Or 340, 346-48, 478 P3d 509 (2020)
(rejecting unpreserved challenge to nonunanimous verdict
instruction on direct appeal, where no jury poll was taken,
in part to avoid giving an unfair advantage to defendants
who did not request a poll); Mandell v. Miller, 326 Or App
807, 811, 533 P3d 815, rev den, 371 Or 476 (2023) (extend-
ing the same principle to post-conviction relief, explaining
that “post-conviction petitioners cannot prove that a Ramos
120 Hernandez v. Brown
violation was consequential in their case when the record
does not indicate whether the jury that convicted them was,
in fact, nonunanimous,” and holding that petitioners are not
entitled to post-conviction relief when they fail to prove that
the verdict underlying a conviction was nonunanimous).
In this case, the presiding juror reported that the
jury’s vote was 12 to 0 on second-degree assault and 12 to 0
on UUW. The court released the jury. The prosecutor then
belatedly requested individual polling of the jury, which
the court denied. Petitioner argues that the trial court was
wrong to deny the polling request and that she is therefore
entitled to post-conviction relief on the counts for which indi-
vidual polling was not done, regardless of the unanimous
verdicts reported by the presiding juror. We disagree. The
post-conviction court found that the verdicts were unani-
mous on the counts at issue, and that finding is supported
by evidence in the record. Whether or not a poll should have
been done when the prosecutor requested it, the only evi-
dence is that the verdicts on those counts were unanimous,
so petitioner cannot prove on this record that the nonuna-
nimity instruction was consequential as to those counts.
The post-conviction judgment is affirmed.
Affirmed.