620 June 17, 2026 No. 552
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STEVEN JAY DECKER,
Petitioner-Appellant,
v.
Amber SUNDQUIST,
Superintendent,
Deer Ridge Correctional Institution,
Defendant-Respondent.
Jefferson County Circuit Court
21CV00612; A185148
En Banc
Patricia A. Sullivan, Senior Judge.
Submitted January 6, 2026.
Raymond Tindell filed the briefs for appellant.
Dan Rayfield, Attorney General, Benjamin Gutman,
Solicitor General, and Rebecca M. Auten, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Chief Judge, Ortega, Judge, Egan, Judge,
Tookey, Judge, Shorr, Judge, Aoyagi, Judge, Powers, Judge,
Kamins, Judge, Pagán, Judge, Joyce, Judge, Hellman,
Judge, and Jacquot, Judge.*
KAMINS, J.
Reversed and remanded for proceedings consistent with
this opinion.
Kamins, J., filed the opinion of the court in which
Lagesen, C. J., and Ortega, Egan, Tookey, Powers, Pagán,
Joyce, Hellman, and Jacquot, JJ., joined.
Aoyagi, J., dissented and filed an opinion in which Shorr, J., joined.
*
O’Connor, J., did not participate in the consideration or decision of this case. Cite as 350 Or App 620 (2026) 621
622 Decker v. Sundquist
KAMINS, J.
Petitioner appeals a judgment denying postconviction relief. After a jury trial in the underlying criminal case, petitioner was found guilty and convicted of fifteen crimes. The jury was polled and two jurors disclosed that
they had voted not guilty. Once the judgment of conviction
was final, petitioner sought post-conviction relief, which was denied. In a single assignment of error, petitioner argues
that the post-conviction court erred in not granting relief
when the jury verdicts were nonunanimous. Reviewing for
legal error and accepting all constitutionally supported findings of fact, Green v. Franke, 357 Or 301, 312, 350 P3d 188
(2015), we conclude that the post-conviction court erred in
finding that the verdicts underlying petitioner’s convictions
were unanimous. Accordingly, we reverse and remand.
Petitioner was charged with fifteen counts of firstdegree sexual abuse and sought a jury trial. At the close of
petitioner’s trial, the jury returned guilty verdicts on all of the 15 counts. The trial court, following its reading of the
verdict, polled the individual jurors, asking if “the verdict
that [it] just read with a guilty verdict as to each of the 15 counts” was “your individual verdict.” All jurors except one,
Juror #10, said yes, and the following exchange occurred:
“JUROR #10: You’re asking about all 15?
“THE COURT: Yes.
“JUROR #10: No.”
The court then explained that “[t]he count is 11 yes
and one no, so it’s an 11 to 1 verdict.” After the court released the jurors from their service, another juror, Juror #1, let the court know that her response should have been “no” instead
of “yes” when asked if the verdict was her individual verdict. That juror then explained that she found petitioner guilty on
six counts but not guilty on the remaining nine counts. The
court did not inquire, and the juror did not clarify, which
counts were not guilty.
In order to obtain post-conviction relief under the
Post-Conviction Hearing Act (PCHA), ORS 138.510 - 138.680,
a petitioner must establish a denial of a constitutional right Cite as 350 Or App 620 (2026) 623
that was “(1) consequential in the criminal justice proceeding; and (2) offensive to our judicial sense of fairness.” Watkins v. Ackley, 370 Or 604, 630, 523 P3d 86 (2022) (internal quotation marks omitted). “[W]hen it is established that
a conviction was entered based on a nonunanimous verdict,
the proceeding must be recognized as fundamentally unfair,
and post-conviction relief must be granted.” Cam v. Pedro,
346 Or App 635, 639, 585 P3d 1145 (2026), rev den, unpublished order in case number S072740 (May 21, 2026) (citing Watkins, 370 Or at 633) (emphases added). “Conversely,
when nonunanimity is not established—usually because
there was no jury poll—post-conviction relief is unavailable.” Id. (emphasis in original). Petitioner bears the burden of proof, by a preponderance of the evidence, to demonstrate
that his convictions were based on nonunanimous verdicts.
ORS 138.620(2).
We conclude that the post-conviction court’s finding
that petitioner failed to meet his burden of proof that his
verdicts were not unanimous is not supported by evidence
in the record. See State v. A. R. H., 371 Or 82, 96, 530 P3d
897 (2023) (describing principle that a reviewing court must
accept a trial court’s finding that a party did not meet its
burden unless the record compels a different finding). That
is because, on this record, there is no possible conclusion
other than that at least nine of the verdicts in petitioner’s
case were nonunanimous. That record includes a jury poll
in which one juror said that a guilty verdict was not his verdict,1 the subsequent statement of the court that petitioner’s verdict was a nonunanimous one, and the statement of a
second juror that she voted “not guilty” on nine of the 15
counts.
To illustrate the role that the jury poll plays in a
petitioner meeting their burden of proof to demonstrate
that a nonunanimous jury instruction resulted in prejudice,
we first note that it was the failure to request a jury poll
1
The parties dispute the significance of Juror #10’s response to the court, and whether that indicates that all 15 guilty verdicts were nonunanimous. As we will explain, we cannot say that Juror #10’s response compels a finding that all 15 verdicts were nonunanimous. Juror #1’s response, on the other hand, does compel a finding that the nine verdicts on which she voted “not guilty” were, in fact, nonunanimous.
624 Decker v. Sundquist
that animated concerns of procedural unfairness in State v.
Dilallo, 367 Or 340, 478 P3d 509 (2020). In that case, the
defendant, on direct appeal, argued that the trial court
plainly erred in providing a nonunanimous jury instruction.
Id. at 342. At the defendant’s trial, consistent with the prevailing law, the jury was instructed that it could convict him without reaching unanimity but the jury was never polled
and the defendant never objected to the instruction. Id. at
342-43.
Given the “uncertainty” over whether the defendant’s
verdicts were actually nonunanimous, the court declined to
exercise its discretion to address the plain error, noting that addressing the error would have the effect of “reward[ing]”
a failure to comply with preservation requirements:
“As the state notes, reversal of [the] defendant’s conviction
would lead to an anomaly: many defendants in cases where
the jury was polled will have their convictions affirmed if
the poll revealed that the verdicts were unanimous, but
[the] defendant would be guaranteed a reversal, regardless
of whether the jury reached a unanimous verdict, because
of a deficiency in the record that could have been avoided
if he had objected. As a result, [the] defendant’s failure to
comply with the preservation requirement would not only
be excused, it would be rewarded.”
Id. at 348; cf. State v. Ulery, 366 Or 500, 504, 464 P3d 1123
(2020) (exercising discretion to review and correct similar
plain error when the defendant had requested a jury poll
that revealed several nonunanimous verdicts); see also
Dilallo, 367 Or at 347-48 (“In Ulery, we knew that the jury’s
verdicts had been nonunanimous, which is why we concluded that the error was a grave one.”).
In Mandell v. Miller, 326 Or App 807, 533 P3d 815,
rev den, 371 Or 476 (2023), we addressed the impact of a
petitioner’s failure to obtain a jury poll in the context of
post-conviction relief. Id. at 811. In that case, the petitioner provided general statistical evidence as to the probability
that he was convicted by a nonunanimous jury. Id. at 810.
We concluded that the petitioner had not met his burden to
prove that the nonunanimous jury instruction was consequential to his conviction, because there was nothing in the
Cite as 350 Or App 620 (2026) 625
record to suggest that the verdicts were actually nonunanimous, such as a “dispositive” jury poll. Id. Echoing Dilallo, we declined to create an “anomaly” where a petitioner who
had not requested a jury poll would be in a better position
than one who had. Id. at 811.
More recently, in Cam, the petitioner was convicted
based on 54 guilty verdicts. 346 Or App at 637. The petitioner also received one acquittal, and the jury was hung on
one count. Id. The sole piece of evidence in the record that
at least one of the petitioner’s verdicts was nonunanimous
was the fact that “after receiving the verdicts, the trial court asked the presiding juror whether the verdicts were unanimous or nonunanimous. The presiding juror answered,
‘Both.’ The jurors were not polled, nor was any other inquiry
made into which of the verdicts was or were nonunanimous.”
Id. at 639. We concluded that, on that record, the postconviction court did not err in finding that the petitioner
did not meet his burden to prove that any of his convictions
stemmed from a nonunanimous verdict:
“Given that record, it is likely that at least one of the
jury’s 54 guilty verdicts was nonunanimous—although it is
not absolutely certain, as it is possible that all of the guilty
verdicts were unanimous and that only the acquittal was
nonunanimous.”
Id. at 640. Thus, in Cam, the petitioner could not establish,
by a preponderance of the evidence, that even a single one
of his convictions stemmed from a nonunanimous verdict,
largely because the jury was not polled. Id. (recognizing that “[i]t would be inequitable for [the] petitioner to fare better for having not requested a jury poll than if he had requested
one” and thus “[t]he problem for [the] petitioner is that there is no way to know how many of the verdicts were nonunanimous or, more importantly, which one(s)” (emphasis in
original)); see also Mandell, 326 Or App at 810 (affirming
the denial of post-conviction relief when the only evidence
of nonunanimity was general statistical information, as
opposed to evidence about “the verdicts in [the] petitioner’s
case”).
Petitioner here has that “dispositive” evidence to
meet his burden of proof. Unlike in Cam, Mandell, and
626 Decker v. Sundquist
Dilallo, it is “absolutely certain,” Cam, 346 Or App at
640, that at least nine of petitioner’s guilty verdicts were
nonunanimous: the presiding juror said that she voted
“not guilty” on nine counts after a jury poll that revealed a
nonunanimous jury. Our conclusion is thus consistent with
Cam—where no jury poll and an ambiguous statement from
a juror was insufficient to meet the petitioner’s burden2 —
and Mandell—where no jury poll and generic statistical
information was similarly insufficient. The evidence here
established “[a] constitutional violation” of such a “magnitude” that rendered the convictions void. Watkins, 370 Or at
633 (“[A] petitioner who establishes a violation of that sort
is entitled to relief, because ORS 138.530(1)(a) provides that a post-conviction court ‘shall’ grant relief for ‘a substantial denial’ of [the] petitioner’s constitutional rights ‘which * * * rendered the conviction void.’ ” (Ellipses in original.)).
The dissent raises a concern with this approach:
that our approach is “inconsistent” with the PCHA’s textual
focus on a “conviction,” ORS 138.530(1)(a). 350 Or App at
630 (Aoyagi, J., dissenting).
We do not read the post-conviction relief statute as
narrowly as the dissent. As a textual matter, we disagree
that the language of 138.530(1)(a) reflects a legislative
intent to focus on an individual conviction rather than the
proceedings giving rise to it. ORS 138.530(1) provides:
“Post-conviction relief pursuant to ORS 138.510 to
138.680 shall be granted by the court when one or more of
the following grounds is established by the petitioner:
“(a) A substantial denial in the proceedings resulting
in petitioner’s conviction, or in the appellate review thereof,
of petitioner’s rights under the Constitution of the United
States, or under the Constitution of the State of Oregon, or
both, and which denial rendered the conviction void.
“(b) Lack of jurisdiction of the court to impose the
judgment rendered upon petitioner’s conviction.
2
We acknowledge that our understanding of Cam differs from the dissent’s. Cam, however, as we understand it and as set forth above, is consistent with our opinion today and need not be overruled.
Cite as 350 Or App 620 (2026) 627
“(c) Sentence in excess of, or otherwise not in accordance with, the sentence authorized by law for the crime
of which petitioner was convicted; or unconstitutionality of
such sentence.
“(d) Unconstitutionality of the statute making criminal the acts for which petitioner was convicted.”
All four of the statutory grounds for relief under ORS
138.530(1) use the same terminology, referencing a “conviction”, or being “convicted.” Given that fact, the focus in (1)(a) appears to us to be on a substantial denial of petitioner’s
rights in the proceedings—as distinct from, in the other subsections, a lack of jurisdiction to impose the judgment, ORS
138.530(1)(b), an error in the sentence, ORS 138.530(1)(c), or unconstitutionality of the statute, ORS 138.530(1)(d)—that
render the conviction void. The use of the word “conviction”
or “convicted” in all four grounds for relief reflects nothing more than the reality of timing: claims for post-conviction
relief will be brought after a conviction is entered. See ORS
138.540(1) (“Except as otherwise provided in ORS 138.510
to 138.680, a petition pursuant to [the PCHA] shall be the
exclusive means, after judgment rendered upon a conviction
for a crime, for challenging the lawfulness of such judgment or the proceedings upon which it is based.” (Emphasis
added.)). Indeed, had the legislature wanted to emphasize
the significance of each individual conviction, it likely would not have used the singular term “conviction” to apply to all
cases, even those with multiple convictions. See, e.g., ORS
138.257(4)(a)(A) (giving specific instructions relating to
remanding “a case involving multiple convictions” on direct
appeal (emphasis added)). The focus of (1)(a) is the substantial denial of constitutional rights, then, and not any individual conviction.3
Having determined that the post-conviction court
erred, the next question is the proper disposition, in light of
3
To the extent ORS 138.530(1)(a) focuses on a “conviction,” it is the “substantial denial” of rights that must render the conviction “void.” The term “void” in ORS 138.530 means that, “ ‘unless appropriate relief is granted[,] the denial of petitioner’s rights that occurred * * * will render his conviction void.’ ” Hinton v. Hill, 342 Or 222, 228, 149 P3d 1205 (2006) (quoting Shipman v. Gladden, 253 Or 192, 203, 453 P2d 921 (1969)) (emphasis and alterations in Hinton). If anything, that underscores the importance of tailoring the remedy (“appropriate relief”) to the substantial denial of rights, as opposed to any individual conviction. 628 Decker v. Sundquist
such an error. In this instance, we are mindful of the postconviction court’s broad discretion to craft remedies that are “proper and just.” ORS 138.520;4 Hinton v. Hill, 342 Or 222,
231, 149 P3d 1205 (2006) (a post-conviction court “has broad
authority to fashion a remedy to correct the actual prejudice
suffered by a criminal defendant”); Lujan v. Myrick, 288 Or
App 763, 768, 407 P3d 966 (2017) (remanding to the postconviction court to allow it to fashion relief “that cures [the] petitioner’s actual prejudice”). Thus, we reverse and remand
with directions to the post-conviction court to fashion an
appropriate remedy that is “proper and just” and that cures
the harm caused by the fact that at least nine of petitioner’s convictions were based on nonunanimous verdicts.
The dissent contends that granting such discretion
on remand fails to give sufficient guidance to trial courts
on the question of remedy on standalone Ramos cases,
which could lead to inconsistent results. 350 Or App at
630 (Aoyagi, J., dissenting). Our role as an error-correcting intermediate appellate court on review, however, is
to identify and correct error. We do not usurp the role of
lower courts to craft a “just and proper” remedy in the first
instance. See Evans v. Nooth, 318 Or App 162, 178, 506 P3d
469 (2022) (after determining that the post-conviction court
erred in denying the petitioner’s inadequate-assistance
claim, “we reverse and remand the post-conviction court’s
judgment and leave it to that court to fashion an appropriate remedy in the first instance”). As noted, particularly in
post-conviction cases, we have recognized that trial courts
have “broad discretion in selecting relief that will fulfill the remedial purpose of the post-conviction statutes,” including relief outside of the specific remedies mentioned in the
statute or of that requested in a post-conviction relief petition. Brock v. Baldwin, 171 Or App 188, 196, 14 P3d 651
(2000), rev den, 332 Or 56 (2001). And, in cases such as
these, “appropriate relief” may not always be a new trial
4
ORS 138.520 provides:
“The relief which a court may grant or order under ORS 138.510 to
138.680 shall include release, new trial, modification of sentence, and such
other relief as may be proper and just. The court may also make supplementary orders to the relief granted, concerning such matters as rearraignment,
retrial, custody and release on security.”
Cite as 350 Or App 620 (2026) 629
on all counts. See Shipman v. Gladden, 253 Or 192, 204,
453 P2d 921 (1969) (PCHA authorizes granting “a delayed
appeal when necessary to rectify a substantial denial of
constitutional rights”); Hinton, 342 Or at 231 (not error for
the post-conviction court to award relief that was limited
to reducing the petitioner’s sentence or allowing petitioner
to withdraw a no contest plea, but that left the petitioner’s
convictions intact).
Finally, we address the dissent’s alternate path for
reversal, which relies on the trial court, in the dissent’s view, unambiguously recording, as its final word, “an 11 to 1 verdict.” 350 Or App at 639-40 (Aoyagi, J., dissenting). The postconviction court determined, however, that any “recording”
was ambiguous and “not the final word” by the trial court.
Because that finding is supported by the record, we are
bound by it. Green, 357 Or at 312 (“A post-conviction court’s
findings of historical fact are binding on this court if there is evidence in the record to support them.”).
Specifically, that statement by the trial court was in
the middle of the discussion about the verdict and prior to the court reopening the record to correct an error in its recording of the verdict. That statement also came in response to
an ambiguous statement by a juror (Juror #10) that a guilty
verdict “on each of the 15 counts” was not his individual verdict, and before the jury foreperson (Juror #1) explained her
verdict on the record. The post-conviction court explained
that it was “simply not clear” which counts Juror #10 disagreed with, or if he even voted not guilty at all, “as his
disagreement may have been with [Juror #1’s] votes.” Under
these circumstances, we are bound by the post-conviction
court’s supported factual finding that that statement by the
trial court was both ambiguous and not its final word. The
dissent offers no support for the proposition that the trial
court’s statement has independent legal significance such
that it would exist outside the realm of a factual finding
subject to our standard of review.
Because petitioner has demonstrated a substantial
denial of his constitutional rights in the proceedings giving
rise to his conviction, we reverse.
630 Decker v. Sundquist
Reversed and remanded for proceedings consistent
with this opinion.
AOYAGI, J., dissenting.
I agree that the post-conviction court erred in
denying relief on petitioner’s standalone Ramos claim but
for an entirely different reason from the majority. I write
separately not so much to explain how I would approach the
case—although I necessarily will do that—but to express
concerns about the majority approach. First, the majority
approach is inconsistent with the text of ORS 138.530(1)(a)
and our case law applying it. Second, the majority requires
the post-conviction court to grant some form of relief on
remand but leaves open what that relief might be, which is
likely to cause confusion and inconsistency. Third, rather
than explicitly overrule Cam v. Pedro, 346 Or App 635, 585
P3d 1145 (2026), rev den, unpublished order in case number S072740 (May 21, 2026), which would require explaining how Cam is “plainly wrong,” State v. Civil, 283 Or App
395, 417, 388 P3d 1185 (2017), the majority silently overrules Cam by disregarding its stated holding and effectively rewriting it to mean something other than what it
says. I discuss each concern in more detail below. As for the
disposition of this case, on this particular record, I would
conclude that petitioner is entitled to post-conviction relief and a new trial on all counts. Accordingly, I respectfully
dissent.
THE PROBLEMS WITH THE MAJORITY APPROACH
To briefly recap the key facts of this case: Petitioner
was charged with 15 crimes. The jury was instructed that 10
or more votes was sufficient to find guilt. The jury returned
guilty verdicts on all 15 counts. A partial poll of the jury
revealed that somewhere between nine and 15 of the verdicts were nonunanimous. Juror #10 told the court that his
or her individual verdict differed from the delivered verdict
but did not identify on which counts it differed. Based on
Juror #10, the trial court recorded “an 11 to 1 verdict.” It
later came to the court’s attention that Juror #1 had misunderstood the polling question, which led to the court going
back on the record and Juror #1 stating on the record that
Cite as 350 Or App 620 (2026) 631
she had voted guilty on six counts and not guilty on nine
counts.
Thus, the record shows that between nine and 15
of defendant’s convictions were entered on nonunanimous
guilty verdicts. It does not establish how many verdicts were
nonunanimous, however, or which verdicts were nonunanimous. (If Juror #10 voted identically to Juror #1, then nine
verdicts were nonunanimous; if not, then between 10 and 15
verdicts were nonunanimous. In either event, it is unknown
which verdicts were nonunanimous.) The post-conviction
court denied relief on that basis, reasoning that petitioner
was “unable to meet his burden under Watkins v. Ackley[, 370
Or 604, 523 P3d 86 (2022),] to show that the verdicts against
him [were] not unanimous,” because, “on this record, it is not possible to determine which Counts were not unanimous.”
The majority views the lack of information as to
how many convictions were nonunanimous and which ones
as not impeding post-conviction relief. I disagree and am
with the post-conviction court on that issue.1
Like anyone bringing a standalone claim for postconviction relief based on Ramos v. Louisiana, 590 US 83,
140 S Ct 1390, 206 L Ed 2d 583 (2020), petitioner seeks relief under ORS 138.530(1)(a). That statute provides that a “conviction” secured by unconstitutional means—specifically a
substantial denial of the defendant’s constitutional rights—
is “void.” ORS 138.530(1)(a) (requiring post-conviction relief to be granted when the petitioner establishes “[a] substantial denial in the proceedings resulting in petitioner’s conviction, or in the appellate review thereof, of petitioner’s
rights under the Constitution of the United States, or under
the Constitution of the State of Oregon, or both, and which
denial rendered the conviction void”); Watkins, 370 Or at 623
(emphasizing that the denial of constitutional rights must
be “substantial,” not “minor” or “technical”).
1
As I will explain later, because petitioner’s trial counsel requested a jury poll and the trial court recorded an 11-1 verdict on all counts, I would conclude that petitioner is entitled to post-conviction relief and a new trial on all counts, even if the trial court made an error in recording the verdicts. That is a fluke of this case, however, and does not change my fundamental disagreement with the majority as to the nature of post-conviction relief and whether it is conviction specific.
632 Decker v. Sundquist
The legislature’s description of the “conviction” as
what is void under ORS 138.530(1)(a) appears to be intentional. The other three bases for post-conviction relief
are similarly specific in their use of language, with ORS
138.530(1)(b) requiring relief if the judgment was entered
without jurisdiction, ORS 138.530(1)(c) requiring relief if
the sentence is unlawful, and ORS 138.530(1)(d) requiring
relief if the petitioner was convicted of violating an unconstitutional statute.2 The majority brushes off those differences
in the legislature’s chosen language as irrelevant to the legislative intent. See 350 Or App at 626-27 (majority opinion).
I disagree. “Ordinarily, when the legislature uses different
terms, we assume that the legislature intends those terms
to have different meanings.” Norwood v. Premo, 287 Or App
443, 451, 403 P3d 502, rev den, 362 Or 300 (2017). There is
no reason to assume that the differences in language are
irrelevant here. ORS 138.530(1)(a) expressly recognizes “the
conviction” as void.
Consistent with the language of ORS 138.530(1)(a),
Oregon courts have always tied post-conviction relief to
individual convictions. To my knowledge, all existing postconviction case law holding a petitioner to be entitled to postconviction relief under ORS 138.530(1)(a) ties that relief to
one or more specific convictions.
For example, when addressing ineffective and inadequate assistance of counsel claims, we routinely limit postconviction relief to those convictions that were affected by
the unconstitutional assistance. Burcham v. Franke, 265
Or App 300, 320, 335 P3d 298 (2014) (“[W]hen a petitioner
is convicted of multiple counts, a petitioner is not entitled
to relief on those counts that his or her counsel’s constitutional inadequacy had no tendency to affect.”); see, e.g., id.
2
See ORS 138.530(1)(b) (requiring post-conviction relief to be granted if the petitioner establishes “[l]ack of jurisdiction of the court to impose the judgment rendered upon petitioner’s conviction” (emphasis added)); ORS 138.530(1)(c) (requiring post-conviction relief to be granted if the petitioner establishes a “[s]entence in excess of, or otherwise not in accordance with, the sentence authorized by law for the crime of which petitioner was convicted; or unconstitutionality of such sentence” (emphasis added)); ORS 138.530(1)(d) (requiring post-conviction relief to be granted if the petitioner establishes “[u]nconstitutionality of the statute making criminal the acts for which petitioner was convicted” (emphasis added)).
Cite as 350 Or App 620 (2026) 633
at 321-22 (holding that the post-conviction court erred in
reversing four of seven convictions, where counsel’s inadequacy did not prejudice those convictions); McMillan v. Kelly, 304 Or App 299, 328, 467 P3d 791 (2020) (the petitioner was
entitled to relief on 10 of 12 convictions); Galloway v. Nooth, 247 Or App 164, 166, 268 P3d 736 (2011) (the petitioner was
entitled to relief on some convictions and not others); Bogle
v. Armenakis, 172 Or App 55, 67, 18 P3d 390 (2001) (the petitioner was entitled to relief on five of 12 convictions). That makes perfect sense, given that ORS 138.530(1)(a) provides
for relief only when a “conviction” is “void” due to being
secured by unconstitutional means.
More importantly, with regard to standalone Ramos
claims in particular, we have consistently limited postconviction relief to those convictions that were entered on a
nonunanimous verdict. In Ramos, the United States Supreme
Court held that the Sixth Amendment “requires a unanimous verdict to support a conviction.” 590 US at 93; see also
State v. Ulery, 366 Or 500, 503, 464 P3d 1123 (2020) (recognizing that it was obvious error under Ramos to “receiv[e]
the jury’s nonunanimous guilty verdicts”). The Oregon
Supreme Court recognized a standalone claim for postconviction relief based on Ramos in Watkins. Describing the
“import” of Ramos as “undeniable,” the court took as a given
that “convicting a defendant on a nonunanimous jury verdict
amounts to a ‘substantial denial in the proceedings resulting
in petitioner’s conviction * * * of petitioner’s rights under the Constitution of the United States * * * which denial rendered
the conviction void[.]’ ” Watkins, 370 Or at 607, 610 (quoting ORS 138.530(1)(a) (ellipses in Watkins; footnote omitted)). It then proceeded to address retroactivity, ultimately holding
that post-conviction relief is available even for convictions
that became final before Ramos was decided. Id. at 633. The
court explained that “convicting the defendant on anything
less than a unanimous guilty verdict violates our sense of
what is fundamentally fair in a criminal proceeding” and
that “[a] constitutional violation of that magnitude ‘render[s] the conviction void’ within the meaning of ORS 138.530
(1)(a)—even if it is raised after the post-conviction petitioner’s conviction became final.” Id. (second brackets in Watkins). 634 Decker v. Sundquist
Under Watkins, if all of a petitioner’s convictions
were entered on nonunanimous verdicts, the petitioner is
entitled to post-conviction relief on all the convictions.
Guerrero-Perez v. Kelly, 370 Or 823, 825, 525 P3d 1237 (2023)
(holding that, where “each” of the petitioner’s convictions
was entered on a nonunanimous jury verdict, he was “entitled to post-conviction relief on each of his convictions”). If less than all the convictions were entered on nonunanimous
verdicts, then the petitioner is entitled to post-conviction
relief only as to those convictions entered on nonunanimous verdicts. Jones v. Brown, 370 Or 649, 652, 523 P3d
82 (2022) (holding that, where the petitioner was convicted
of seven crimes, and three of the convictions were entered
on nonunanimous jury verdicts, “the post-conviction court
erred in denying relief as to petitioner’s three convictions
that were entered on nonunanimous verdicts” (footnote
omitted)); see also, e.g., Manning v. Kelly, 325 Or App 31, 34, 528 P3d 311 (2023) (holding that, where the petitioner was
convicted of six crimes, and three of the convictions were
entered on nonunanimous jury verdicts, he was entitled to
relief on those three convictions).
The Supreme Court has never addressed the availability of post-conviction relief in cases without a definitive jury poll. This court has done so, however, first in a case
with no jury poll and, later, in a case like this one with an
incomplete poll.
In Mandell v. Miller, 326 Or App 807, 808, 533 P3d
815, rev den, 371 Or 476 (2023), the petitioner was convicted
of two crimes by a jury instructed that only 10 jurors needed
to agree on guilt. No one requested a poll, so the trial record was silent as to the jurors’ votes on each count. Id. After
Ramos was decided, the petitioner sought post-conviction
relief, asserting a standalone Ramos claim. Id. at 809. We
affirmed the denial of relief. Id. at 810. We explained that the petitioner bore the burden of proof and had failed to prove
that either of his convictions was entered on a nonunanimous verdict. Id. We acknowledged evidence in the record
that “approximately two thirds of jury trials from 2001 to
2018 included at least one nonunanimous conviction” but
reasoned that “such general statistics do not indicate that
Cite as 350 Or App 620 (2026) 635
either—let alone both—of the verdicts in petitioner’s trial
were actually nonunanimous.” Id. (emphasis omitted).
In deciding to affirm, we were guided in part by
Oregon Supreme Court case law applying Ramos in direct
criminal appeals, particularly State v. Dilallo, 367 Or 340,
478 P3d 509 (2020). Mandell, 326 Or App at 810. The defendant in Dilallo was convicted of one count of delivery of
methamphetamine. Dilallo, 367 Or at 342-43. On direct
appeal, he assigned error to the jury instruction on nonunanimity. Id. at 343. He had not objected to that instruction,
so appellate review was limited to “plain error,” and the jury had not been polled, so the jurors’ votes were unknown. Id.
at 342-43. The Supreme Court held that the trial court had
plainly erred in its instruction to the jury, but it declined
to exercise its discretion to correct the error, because it was concerned that reversing the defendant’s conviction in such
circumstances would result in an inequitable “anomaly” by
effectively rewarding the defendant for not obtaining a jury
poll:
“[R]eversal of defendant’s conviction would lead to an anomaly: many defendants in cases where the jury was polled
will have their convictions affirmed if the poll revealed
that the verdicts were unanimous, but defendant would
be guaranteed a reversal, regardless of whether the jury
reached a unanimous verdict, because of a deficiency in the
record that could have been avoided if he had objected. As
a result, defendant’s failure to comply with the preservation requirement would not only be excused, it would be
rewarded.”
Id. at 348. The court noted that “the information that would
have been revealed by a jury poll would not only be important, it would likely be dispositive.” Id. at 347.
We viewed “[t]he flaw in the record in Dilallo” as
“equally present” in Mandell and concluded that “a reversal [in Mandell] would create that same anomaly.” Mandell,
326 Or App at 811. That is, granting post-conviction relief
to “petitioners who were convicted by unpolled juries” would
result in their receiving relief on all their convictions,
both valid and void, “while petitioners whose juries were
polled and revealed to be unanimous would, in effect, be in
636 Decker v. Sundquist
a worse position than if they had not raised the issue at
all.” Id. Mandell thus forecloses post-conviction relief on a
standalone Ramos claim in the absence of a jury poll—or
equivalent information obtained through a post-conviction
investigation. That is, absent a jury poll or equivalent information, a petitioner cannot meet their burden of proof on a
standalone Ramos claim.
We next considered the availability of post-conviction
relief in the absence of a definitive jury poll in Cam. In that case, the petitioner was charged with 56 crimes, and the
jury—having been instructed that only 10 jurors needed to
agree on guilt—found him guilty on 54 counts, hung on one
count, and acquitted him on one count. Cam, 346 Or App
at 637. The jury was not properly polled, but the trial court
did ask the presiding juror whether the verdicts were unanimous or nonunanimous, and the presiding juror answered,
“Both.” Id. at 639. The petitioner later sought post-conviction relief, asserting that he was “entitled to reversal of all his convictions because the record shows that one or more of
those convictions was based on a nonunanimous jury verdict.” Id. at 638. We affirmed the denial of relief. Id. at 637. We noted that, under existing case law, to obtain relief on
a standalone Ramos claim, the petitioner had the burden to
prove nonunanimity (by a preponderance of the evidence).
Id. at 639. We then proceeded to explain that it was not
enough merely to establish that one or more unspecified
convictions was likely based on a nonunanimous verdict but
that, rather, nonunanimity had to be established on “a verdict-by-verdict basis.” See id. at 640.
Although it was “likely” that at least one of the Cam
petitioner’s convictions was entered on a nonunanimous verdict, “[t]he problem for petitioner [was] that there [was] no
way to know how many of the verdicts were nonunanimous
or, more importantly, which one(s).” Id. (emphasis in original). That was a problem because the petitioner was entitled
to post-conviction relief on any “specific convictions” entered on nonunanimous verdicts, but he was not entitled to relief
on any valid convictions entered on unanimous verdicts,
and, without a proper jury poll, it was impossible to know
which convictions fell into each category. Id. The availability Cite as 350 Or App 620 (2026) 637
of relief necessarily had to be “assessed on a verdict-by-verdict basis.” Id. And, as with the situations in Dilallo and
Mandell, “[i]t would be inequitable for petitioner to fare better for having not requested a jury poll”—that is, a proper
jury poll—“than if he had requested one.” Id.
That brings me to the present case. I have three
related concerns about the majority opinion in this case.
First, the majority approach is inconsistent with
the text of ORS 138.530(1)(a) and our case law applying it,
for the reasons that I have described. ORS 138.530(1)(a) provides that a “conviction” secured by unconstitutional means
is “void,” and we have historically limited post-conviction
relief to the specific convictions that were rendered void by a substantial constitutional violation at trial.
Second, the majority opinion provides almost no
guidance to post-conviction courts regarding how to fashion
a remedy for standalone Ramos claims when the court does
not know which convictions are void. That not only leaves
the court in this case with inadequate guidance on remand,
but it virtually ensures inconsistent results among cases.
Although it is generally true that post-conviction courts have broad discretion in fashioning post-conviction relief, see 350 Or App at 628 (majority opinion), that discretion does not
extend to reversing valid convictions. And, as to convictions
that are void because they were entered on a nonunanimous
verdict, the only effective remedy is to reverse those convictions and grant a new trial. That remedy is easy to provide
when post-conviction relief is tied to specific convictions.
But if a petitioner need only prove that some conviction is
nonunanimous, without establishing which one or how many,
fashioning a remedy quickly becomes arbitrary.
Not knowing which convictions are void (and not
having any meaningful guidance from this court as to how
to fashion an appropriate remedy in the absence of that
information), a post-conviction court might reverse all the
convictions, thereby reversing not only the void ones entered
on nonunanimous verdicts but also the valid ones entered
on unanimous verdicts—creating the very “anomaly” that
Dilallo and Mandell sought to avoid. Or the post-conviction
638 Decker v. Sundquist
court might try to guess which convictions are void and
reverse those, recognizing that it will almost certainly guess wrong. Or the post-conviction court might just randomly
pick some convictions to reverse. In this particular case,
petitioner happens to have been convicted of 15 counts of the
same crime against the same victim, so the randomness may
not be quite as troubling, but it is still random. Because of
the incomplete jury poll, there is no way to know how many
of petitioner’s convictions were entered on nonunanimous
verdicts—only that it is either 9, 10, 11, 12, 13, 14, or 15 convictions. There is also no way to know which convictions were
entered on nonunanimous verdicts. That is no small thing. A
post-conviction petitioner is not entitled to relief from valid convictions. Moreover, counts may vary wildly in terms of
seriousness and in terms of the strength of the state’s evidence. How is a post-conviction court to pick which convictions to reverse absent knowing which ones are void?
Theoretically, the post-conviction court could try
to contact the jurors, or order the parties to do so, in the
hopes of figuring out how many verdicts, and which ones,
were nonunanimous. It seems strange to require the court
to oversee or order an investigation, however, when there is
already a procedure for petitioners to seek that information
before the post-conviction trial. See ORS 138.585 (providing
procedure to seek confidential jury records and move to contact jurors). The bigger problem, however, is that an investigation is not itself relief. Jurors may be impossible to locate, unwilling to talk, or not remember the relevant information.
The post-conviction court is then back at square one, needing to arbitrarily pick how many and which convictions to
reverse because it does not know which ones are void and
which ones are valid.
Finally, my third concern is that the majority is
silently overruling Cam and thus sidestepping our normal
procedure for overruling existing precedent, which requires
explaining how it is “plainly wrong.” Civil, 283 Or App at
417. The majority does so by ignoring the express reasoning of Cam and distinguishing Cam based on a fact that
was irrelevant to its holding, i.e., the one acquittal. See 350 Or App at 625-26 (majority opinion). It is true that there
Cite as 350 Or App 620 (2026) 639
was one acquittal in Cam, but the burden of proof in a postconviction case is only a preponderance of the evidence, ORS
138.620(2), and we expressly stated in Cam that the record
made it “likely” that at least one conviction was nonunanimous, 346 Or App at 640. The remote possibility that the
jury was unanimous on the 54 guilty verdicts and nonunanimous only on the one count of acquittal played no part in
our reasoning. See Cam, 346 Or App at 640. To the contrary,
we expressly stated that “[t]he problem” that prevented the
petitioner from obtaining post-conviction relief was “that
there is no way to know how many of the verdicts were
nonunanimous or, more importantly, which one(s),” and that
nonunanimity necessarily had to be established on a “verdict-by-verdict basis.” Id. (emphasis in original).
The majority ignores the stated reasoning and holding of Cam and superimposes different reasoning to explain
why it would have denied relief in Cam, which is based on
the one acquittal. 350 Or App at 625-26 (majority opinion).
In doing so, the majority silently overrules Cam, without
explaining how Cam is “plainly wrong” under Civil. I would
adhere to Cam, because I do not believe it is “plainly wrong,” such that it is properly a matter for the Supreme Court at
this point, but, at a minimum, we should be transparent
when we overrule our own precedent.
AN ALTERNATIVE PATH TO REVERSAL
Having explained why I disagree with the majority
opinion, I conclude by explaining how I would resolve this
particular case.
As in Cam, the trial court in this case conducted an
incomplete jury poll after receiving the verdicts. Unlike in
Cam, the record here shows that it was petitioner’s counsel
who requested the poll and that, upon hearing from Juror
#10, the court recorded “an 11 to 1 verdict.” At that point, in my view, petitioner was entitled to rely on the record made
by the court as establishing an 11-1 verdict on all counts.
Petitioner made that argument to the post-conviction
court, which rejected it, reasoning that recording an 11-1 verdict “was not the final word by the Court and is ambiguous
in light of” what Juror #10 said when polled, which makes it
640 Decker v. Sundquist
“simply not clear which counts [Juror #10] disagreed with”
and whether “they were the same or different from [Juror
#1’s].” Although I agree that the record does not conclusively establish as a factual matter that all 15 of the jury’s verdicts were nonunanimous, I disagree that the verdict recorded by
the court was ambiguous. The trial court expressly recorded
“an 11 to 1 verdict” without limitation. The trial court may
have misunderstood Juror #10 or otherwise erred in recording an 11-1 verdict across the board based on the information that it had. But that does not make what the court said
ambiguous. If the state thought it was incorrect or ambiguous, it could have objected. Petitioner had no reason to object.
The majority takes the view that we are “bound”
by the post-conviction court’s “finding” that the recorded
verdict was “ambiguous.” 350 Or App at 629 (majority opinion). But whether a statement is ambiguous is normally a
question of law, not fact; it is only the resolution of an ambiguity, once deemed to exist, that involves factfinding. See,
e.g., Eagle Industries, Inc. v. Thompson, 321 Or 398, 405,
900 P2d 475 (1995) (whether a contract term is ambiguous
is “a question of law”); Carroll v. Lane County, 340 Or App
514, 523, 572 P3d 332 (2025) (same for real property deeds);
Baertlein and Stocks, 303 Or App 51, 61, 464 P3d 433 (2020)
(same for stipulated judgments); see also Interstate Roofing,
Inc. v. Springville Corp., 347 Or 144, 159, 218 P3d 113 (2009) (“[I]f a judgment document does not unambiguously manifest the concluding decision on a claim, an appellate court
cannot address that defect by consulting the record to determine what the trial court subjectively intended.” (Footnote
omitted.)).
In my view, for purposes of a standalone Ramos claim,
a petitioner should be able to rely on the verdict recorded by the trial court. It is the receipt of the nonunanimous guilty
verdict that violates the Sixth Amendment. Ulery, 366 Or at
503 (recognizing that it was obvious error under Ramos to
“receiv[e] the jury’s nonunanimous guilty verdicts”). For that reason, I would conclude that petitioner is entitled to postconviction relief—that is, a new trial—on all 15 convictions.
I disagree with remanding to the post-conviction court to
grant unspecified relief on unspecified convictions.
Cite as 350 Or App 620 (2026) 641
I respectfully dissent.
Shorr, J., joins in this dissent.