State v. Poston

309 Or.App. 377

482 P.3d 778

STATE of Oregon, Plaintiff-Respondent,

v.Latrell Earvin POSTON, Defendant-Appellant.

A167302

Court of Appeals of Oregon.

Argued and submitted October 4, 2019.

February 18, 2021

Ingrid A. MacFarlane, Deputy Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Timothy A. Sylwester argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Latrell Poston filed the supplemental brief pro se.

Before Lagesen, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.^*

POWERS, J.

In this case, we must chart the outer limits of the "law of the case" doctrine and address whether that doctrine or the scope of our prior remand prevents defendant from challenging the validity of his convictions. We conclude that the prudential doctrine of law of the case must give way in this instance to an intervening, inconsistent, controlling decision by a higher court. We further conclude that consideration of defendant's challenge is not barred by the scope of our remand, reach the merits of defendant's challenge, and reverse and remand.

Defendant appeals from a judgment entered by the trial court after it resentenced him on six counts of promoting prostitution following our decision in an earlier appeal, State v. Poston , 277 Or. App. 137, 370 P.3d 904 (2016) ( Poston I ), adh'd to on recons. , 285 Or. App. 750, 399 P.3d 488 ( Poston II ), rev. den. , 361 Or. 886, 403 P.3d 761 (2017). In that earlier appeal, defendant challenged convictions on the six counts of promoting prostitution as well as counts of identity theft. He argued that the court erred in accepting nonunanimous jury verdicts, and we rejected that argument without discussion, as we routinely did at that time based on controlling precedent. Poston I , 277 Or. App. at 138, 370 P.3d 904. However, defendant also argued that the indictment was defective in joining all of the counts, and we agreed with him on that point. We reversed the convictions for identity theft but ultimately concluded that the error was harmless with regard to the six counts of promoting prostitution. We therefore affirmed the convictions on those six counts and remanded for resentencing. Poston I , 277 Or. App. at 146, 370 P.3d 904 (remanding for resentencing on those counts); Poston II , 285 Or. App. at 751, 399 P.3d 488 (adhering to that disposition).

In 2018, following our directive, the trial court resentenced defendant on the six counts of promoting prostitution. Defendant then appealed the resulting judgment, assigning error to the trial court's calculation of his criminal history, its imposition of an aggregate sentence purportedly violating the "200 percent rule," its failure to merge the guilty verdicts, and its failure to consider defendant's post-sentencing conduct; defendant also filed a pro se assignment of error directed at the prejudice analysis in Poston I . The state filed an answering brief, arguing that none of the arguments was well taken.

Then the sea changed. While his appeal was pending, the Supreme Court of the United States issued its decision in Ramos v. Louisiana , 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020), which "upended 48 years of precedent holding that the unanimity requirement of the jury trial provision of the Sixth Amendment was not incorporated against the states." State v. Herfurth , 307 Or. App. 534, 536, 478 P.3d 601 (2020). Under Ramos , a trial court's entry of judgments of conviction based on nonunanimous verdicts violates a defendant's right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution. 590 U.S. ––––, 140 S. Ct. at 1397.

Defendant asked to file a supplemental brief based on Ramos , and we allowed that request. He then added a supplemental assignment of error that essentially raised the same argument that we rejected in his earlier appeal, viz. , that the verdict on each of the counts of promoting prostitution was nonunanimous and therefore violated his Sixth Amendment rights. The state does not dispute the substance of defendant's argument; in fact, it concedes that "[d]efendant is correct that the jury's guilty verdicts on those counts were not unanimous" and that "to be sure, it is now established that an unpreserved Ramos -based challenge to a nonunanimous verdict is reviewable as plain error on direct appeal and may thereby provide a basis for an appellate court to reverse and remand for a new trial." The state's only argument is this: too late.

According to the state, this court's earlier decisions "finally affirmed his convictions" and "[c]onsequently, well-established principles of ‘law of the case’ and ‘limited scope of remand’ preclude defendant, in this appeal, following a resentencing-only remand, from now challenging the validity of his convictions on a ground that he asserted but this court rejected in his previous appeal." (Emphasis in original.)

We generally agree with the state's argument that, as " ‘a general principle of law and one well recognized in this state,’ " a decision by an appellate court, although it may be overruled in other cases, " ‘is binding and conclusive both upon the inferior court in any further steps or proceedings in the same litigation and upon the appellate court itself in any subsequent appeal or other proceeding for review.’ " State v. Pratt , 316 Or. 561, 569, 853 P.2d 827 (1993) (quoting Simmons v. Wash. F. N. Ins. Co. , 140 Or. 164, 166, 13 P.2d 366 (1932) ). That principle, however, is not absolute. As the Supreme Court has explained, the policies underlying the general rule are prudential:

"The policies underlying the doctrine of the ‘law of the case’ essentially parallel those served by the doctrines of stare decisis and res judicata /preclusion, i.e. , consistency of judicial decision, putting an end to litigation of matters once determined, and preserving the court's prestige. [Allan D.] Vestal, Law of the Case: Single-Suit Preclusion , 1967 Utah L. Rev. 1 (1967). Briefly stated, the doctrine of the law of the case precludes relitigation or reconsideration of a point of law decided at an earlier stage of the same case. The rationale is that a court should adhere to a previous ruling on an identical matter, whether rightly or wrongly decided, in order to advance the policies enumerated above."

Koch v. So. Pac. Transp. Co. , 274 Or. 499, 511-12, 547 P.2d 589 (1976) (emphasis omitted); see also Poet v. Thompson , 208 Or. App. 442, 450, 144 P.3d 1067 (2006) ("Whatever the context, as the court explained in [ Koch ], the application of the doctrine is, ultimately, prudential[.]").

In Koch , the Supreme Court, citing Professor Vestal's article, observed that "[t]here is no uniformity among the jurisdictions either in the stages at which the doctrine is given effect or in the rigidity with which it is applied," 274 Or. at 512, 547 P.2d 589. Importantly, however, Vestal proceeded to identify one area where there was little room for disagreement: the well-established exception in the case of "intervening, inconsistent, controlling authority." 1967 Utah L. Rev. at 6. As Vestal explains:

"One of the recurring problems is that which arises when a determination has been made by a court and this is followed by an apparently contrary determination by a higher, controlling court, which does not actually overrule the first decision because it involves different persons.

When the first suit continues, does the earlier—now seemingly incorrect—determination control? An example of this might be a case in which a question has been determined by a state supreme court and remanded to the trial court for further proceedings. If the United States Supreme Court considers this question in other litigation and holds contrary to the state supreme court, should the trial court proceed to try the matter under the mandate which now seems to be incorrect? The waste of judicial manpower is obvious."

Id. He then proceeded to discuss federal and state cases that "accepted this exception to ‘law of the case.’ " Id. at 8 (explaining that "controlling authority" is a higher court directly in line in the hierarchy of judicial power—in "the case of a state trial court applying the ‘law of the case’ established by an intermediate appellate court, the higher controlling authority would be the state supreme court or the Supreme Court of the United States").¹

Oregon is among the states that have recognized the well-established exception for an intervening, inconsistent, controlling change in law. In Morley v. Morley , 24 Or. App. 777, 781, 547 P.2d 636 (1976), we explained that "[a] change of law or change of facts since the prior adjudication does not negate the applicability of res judicata; but such a change can be a compelling basis to negate the applicability of law of the case." And in State v. Metz , 162 Or. App. 448, 454, 986 P.2d 714 (1999), rev. den. , 330 Or. 331, 6 P.3d 1101 (2000), we held that "[t]he law of the case doctrine is essentially one of judicial economy and judicial discretion," and that "[d]efendant offers no cogent reason why this doctrine should be extended to preclude courts from recognizing and applying newly enacted laws, and we are aware of none." In so holding, we cited cases from other jurisdictions to the effect that "there is an exception to the law of the case doctrine if there has been a change in the controlling law between the first and second appeal." Id. at 718, 986 P.2d 714 ; see also State v. Osborne , 82 Or. App. 229, 236, 728 P.2d 551 (1986) (observing that "changes in the law or in the facts since the prior ruling can negate" application of law of the case).

Those precedents fit within the broader tapestry of Oregon's approach to the doctrine of law of the case, which is prudential in nature rather than blind to justice. In Marr et al v....