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explaining that, under Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt), and Blakely v. Washington , 542 U.S. 296, 303-04, 124 S.Ct. 2531, 159 L.Ed.2d 403 (the statutory maximum sentence for a crime for Apprendi purposes is the sentence authorized by the sentencing guidelines without additional factual determinations), the Sixth Amendment provides the right to unanimous jury findings on sentence-enhancement facts
Summary of this case from State v. EnloeOpinion
A173016
10-27-2021
STATE of Oregon, Plaintiff-Respondent, v. Toan Phuc HUYNH, Defendant-Appellant.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Stephanie J. Hortsch, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Doug M. Petrina, Assistant Attorney General, filed the brief for respondent.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Stephanie J. Hortsch, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Doug M. Petrina, Assistant Attorney General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.
AOYAGI, J. Defendant was convicted of third-degree robbery, ORS 164.395, fourth-degree assault, ORS 163.160, and interfering with a peace officer, ORS 162.247, based on unanimous jury verdicts. The jury also found five enhancement facts to support upward departure sentences: that the crimes involved a threat of or actual violence, that defendant had been persistently involved in similar offenses, that prior sanctions had failed to deter defendant's criminal activity, that defendant demonstrated a disregard for laws and rules, and that incarceration was necessary for the safety of the public. The jury returned an 11-1 verdict on the enhancement fact that prior sanctions had failed to deter defendant's criminal activity; it otherwise returned unanimous verdicts on the enhancement facts. When sentencing defendant, the trial court imposed upward departure sentences on both the robbery conviction and the assault conviction, based on defendant's persistent involvement in similar offenses, prior sanctions having not deterred defendant's criminal activity, and the crimes being against a vulnerable victim. On appeal, defendant argues that the trial court plainly erred in instructing the jury that it could return nonunanimous verdicts as to guilt and as to the enhancement facts. He seeks reversal of all of his convictions on that basis, asserting structural error under Ramos v. Louisiana, 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020). The state concedes that the court's instructions were erroneous under Ramos but maintains that the error was harmless as to the unanimous verdicts and the unanimously found departure facts. For the reasons discussed in State v. Flores Ramos , 367 Or. 292, 310-13, 478 P.3d 515 (2020), we agree with the state and reject defendant's arguments as to the unanimous verdicts and the unanimously found departure facts.
As for defendant's remaining arguments, the state concedes, and we agree, that this case must be remanded for resentencing for two reasons.
First, as noted, the trial court imposed departure sentences for the robbery and assault convictions based in part on an enhancement fact—that prior sanctions had failed to deter defendant's criminal activity—on which the jury returned a nonunanimous verdict. That was error in light of Ramos . The Sixth Amendment provides not only the right to a unanimous jury but also the right to unanimous jury findings on sentence-enhancement facts such as the one at issue here. See Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) (other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt); Blakely v. Washington , 542 U.S. 296, 303-04, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) (the statutory maximum sentence for a crime for Apprendi purposes is the sentence authorized by the sentencing guidelines without additional factual determinations); see also ORS 136.785(3) (requiring an enhancement fact tried to a jury to be found by a number of jurors "equal to or greater than the number of jurors that was required to find the defendant guilty of the crime"); ORS 136.792(2) (same for resentencing). For the reasons set forth in State v. Ulery , 366 Or. 500, 503-05, 464 P.3d 1123 (2020), we exercise our discretion to correct the error.
Second, the state concedes, and we agree, that the trial court plainly erred in relying on an enhancement fact—that the crimes involved a vulnerable victim—that was not tried to or found by the jury. See ORS 136.770(1) (providing for an enhancement fact related to a charged offense to be tried to the jury, unless the defendant waives the right to a jury trial on the enhancement fact and either admits to the enhancement fact or elects to have it tried to the court).
Accordingly, defendant is entitled to resentencing, and we remand for that purpose.
Given our disposition, we need not reach defendant's third assignment of error, which raises an unpreserved issue regarding the legal propriety of the trial court's use of the persistent-involvement factor in sentencing. Any arguments on that issue are better directed to the trial court on remand.
Remanded for resentencing; otherwise affirmed.