Howell v. Sheppard

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). Submitted August 8, affirmed September 13, 2023, petition for review denied February 15, 2024 (372 Or 63)

RICKY L. HOWELL, Petitioner-Appellant, v. Doug SHEPPARD, Superintendent, Columbia River Correctional Institution, Defendant-Respondent. Tillamook County Circuit Court 20CV18611; A177238

Mari Garric Trevino, Judge. Jedediah Peterson and O’Connor Weber LLC filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rebecca M. Auten, Assistant Attorney General, filed the briefs for respondent. Before Lagesen, Chief Judge, and Kamins, Judge, and Kistler, Senior Judge. KAMINS, J. Affirmed.

166 Howell v. Sheppard

KAMINS, J. Petitioner appeals the denial of his request for post- conviction relief (PCR) from his 2018 convictions after a jury trial for burglary, theft, criminal mischief, and unlaw- ful possession of methamphetamine. Petitioner raises two assignments of error stemming from the United States Supreme Court’s decision in Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020), concluding that the Sixth Amendment to the United States Constitution requires that a jury reach a unanimous guilty verdict to convict someone of a felony. He first contends that his trial counsel, in January 2018, rendered inadequate and ineffec- tive assistance of counsel, in violation of his rights under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution, by not objecting to the nonunanimous jury instruction and not requesting that the jury be polled. That claim is foreclosed. See Smith v. Kelly, 318 Or App 567, 569, 508 P3d 77 (2022), rev den, 370 Or 822 (2023) (holding that trial counsel do not perform deficiently by failing to raise the unanimity issue before Ramos was litigated); Aaron v. Kelly, 325 Or App 262, 266, 528 P3d 1215 (2023) (concluding that trial counsel’s pre-Ramos decision not to challenge the nonunanimous jury instruction and not to request a jury poll was reasonable). Petitioner next contends that his convictions were obtained in violation of the state and federal constitutions because they were based on nonunanimous jury verdicts. Because the record is silent on whether the verdicts were actually nonunanimous, petitioner has not met his burden of proof as to those claims. Mandell v. Miller, 326 Or App 807, 811, 533 P3d 815 (2023) (“[P]ost-conviction petitioners cannot prove that a Ramos violation was consequential in their case when the record does not indicate whether the jury that convicted them was, in fact, nonunanimous, and are therefore not entitled to relief.”). Affirmed.