Conklin v. Miller

1

328 Or.App. 163

RICHARD W. CONKLIN, Petitioner-Appellant, v. Jamie MILLER, Superintendent, Snake River Correctional Institution, Defendant-Respondent.

A177130

Court of Appeals of Oregon

September 13, 2023

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).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, 2023

Malheur County Circuit Court 19CV54742; J. Burdette Pratt Senior Judge.

Jason Weber and O'Connor Weber LLC fled the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Erin K. Galli, Assistant Attorney General, fled the briefs for respondent.

Before Lagesen, Chief Judge, and Kamins, Judge, and Kistler, Senior Judge.

KAMINS, J.

Petitioner appeals the denial of his request for postconviction relief from his 2018 convictions after a jury trial for sodomy sexual abuse, and unlawful sexual penetration. Petitioner raises two assignments of error stemming from the United States Supreme Court's decision in Ramos v. Louisiana, 590 U.S. ___, 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 verdict to convict someone of a felony). He first contends that his trial counsel, in January 2018, rendered inadequate and ineffective 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 P.3d 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 P.3d 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 P.3d 815 (2023) ("[P]ost-conv...