Background
In 2016, Edward Perez-Perez was charged with four counts of first-degree sexual abuse and one count of driving while suspended. After the trial court instructed the jury that at least 10 jurors had to agree on a verdict, the jury returned nonunanimous guilty verdicts on all five counts.
Perez-Perez later obtained post-conviction relief under Watkins v. Ackley, and a stipulated judgment vacated his convictions and remanded the case for further proceedings, including a possible retrial. On remand, he moved to dismiss on former-jeopardy grounds. After the trial court denied the motion, he entered a conditional no-contest plea to all five counts and reserved his right to appeal that ruling.
The Court’s Holding
The Oregon Court of Appeals affirmed, holding that State v. Clyde controlled and that retrial was not barred by ORS 131.525 or the Oregon and federal constitutional protections against double jeopardy. Under Clyde, a conviction based on nonunanimous verdicts is a conviction affected by reversible constitutional error—not an acquittal or a finding that the evidence was insufficient—and retrial after such an error is permitted.
The court rejected Perez-Perez’s argument that his case differed from Clyde because his jury was not instructed to attempt unanimity or informed that unanimity was constitutionally required. Clyde did not depend on the precise wording of the jury instructions. The court also concluded that Perez-Perez waived any statutory objection to the prior prosecution’s termination by voluntarily stipulating in the post-conviction proceeding to a remand that expressly contemplated retrial, without asserting that retrial was barred.
Key Takeaways
- Vacating a conviction based on nonunanimous verdicts does not bar retrial under Oregon or federal double-jeopardy principles.
- The result does not turn on whether the original jury was instructed to attempt unanimity or told that unanimity was constitutionally required.
- A defendant may waive a statutory former-jeopardy objection by seeking relief that contemplates retrial without disputing whether the original prosecution was properly terminated.
Why It Matters
The decision applies Clyde to convictions vacated through post-conviction proceedings and confirms that defendants who obtain relief from unconstitutional nonunanimous verdicts ordinarily remain subject to retrial. It also highlights that stipulations and requested remedies in post-conviction litigation can affect later former-jeopardy arguments.
The opinion is a nonprecedential memorandum opinion under ORAP 10.30 and may be cited only as that rule permits.