No. 141 February 28, 2024 225

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

TERRY MICHAEL MARTIN,

Petitioner-Appellant,

v.

STATE OF OREGON,

Defendant-Respondent.

Multnomah County Circuit Court

21CV14306; A176475

Eric L. Dahlin, Judge.

Argued and submitted February 2, 2024.

Andy Simrin argued the cause for appellant. Also on the 

brief was Andy Simrin PC.

Rebecca M. Auten, Assistant Attorney General, argued 

the cause for respondent. Also on the brief were Ellen F. 

Rosenblum, Attorney General, and Benjamin Gutman, 

Solicitor General.

Before Shorr, Presiding Judge, Mooney, Judge, and Pagán,

Judge.

SHORR, P. J.

Reversed and remanded.
226 Martin v. State of Oregon

SHORR, P. J.

Petitioner Terry Michael Martin appeals from the 

judgment entered in favor of defendant State of Oregon after 

the post-conviction court granted the state’s motion for summary judgment. Petitioner assigns error to the court’s grant 

of summary judgment in favor of the state and its denial of 

petitioner’s cross-motion for summary judgment.1 The state 

concedes that the post-conviction court erred. Based on case 

law decided since the post-conviction court ruled, we agree 

that the court erred. As a result, we reverse and remand.

We state only those facts necessary to understand 

this opinion. The facts are procedural and undisputed. In 

1991, a jury found petitioner guilty of various second-degree 

sexual abuse and kidnapping charges by nonunanimous 

verdicts. The trial court merged the verdicts on some of 

those counts and entered a judgment of conviction on the 

remaining counts. Subsequently, in Ramos v. Louisiana, 

590 US ___, ___, 140 S Ct 1390, 1394-97, 206 L Ed 2d 583 

(2020), the United States Supreme Court held that the Sixth 

Amendment to the United States Constitution, applied to 

the states through the Fourteenth Amendment, requires a 

unanimous verdict for the conviction of a “serious offense.”2

After Ramos was decided, petitioner filed a petition for postconviction relief under ORS 138.530,3

 alleging a substantial 

1 As a general rule subject to certain exceptions, we do not review the denial 

of a motion for summary judgment. See, e.g., Freeman v. Stuart, 203 Or App 191, 

194, 125 P3d 786 (2005) (denial of summary judgment generally not reviewable 

where the matter has gone to trial unless the motion raises a purely legal contention). However, in an appeal arising from cross-motions for summary judgment, the 

granting of one motion and the denial of the other are both reviewable. Eden Gate, 

Inc. v. D&L Excavating & Trucking, Inc., 178 Or App 610, 622, 37 P3d 233 (2002).

2 The Sixth Amendment provides, among other things, that “[i]n all criminal 

prosecutions, the accused shall enjoy the right to a speedy and public trial, by an 

impartial jury of the State.”

3 ORS 138.530(1) provides, in part:

“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.”
Cite as 331 Or App 225 (2024) 227

denial of his rights because he had been denied his right to a 

unanimous jury as guaranteed by the Sixth and Fourteenth 

Amendments. It was undisputed in the post-conviction court 

and before us that petitioner had been convicted of “serious 

offenses.”

The parties each filed cross-motions for summary 

judgment. The state contended that the rule announced 

in Ramos did not apply retroactively under either federal 

law or the Oregon Post-Conviction Hearing Act (PCHA). 

Petitioner conceded that, under the United States Supreme 

Court’s decision in Edwards v. Vannoy, 593 US ___, 141 S Ct 

1547, 209 L Ed 2d 651 (2021), Ramos did not apply retroactively on federal collateral review. However, petitioner 

noted that Edwards left it to the states to decide whether 

the rule applied retroactively under state post-conviction 

law. See Edwards, 593 US at ___ n 6, 141 S Ct at 1559 n 6 

(“States remain free, if they choose, to retroactively apply 

the jury-unanimity rule as a matter of state law in state 

post-conviction proceedings.”). Petitioner then argued that 

Ramos should apply retroactively under the PCHA.

At the time that the parties filed their cross-motions 

for summary judgment, it remained an open issue whether 

Ramos applied retroactively under the PCHA. The postconviction court concluded that it did not. After the postconviction court ruled, the Oregon Supreme Court concluded 

that Ramos applied retroactively under the PCHA such 

that a person who was previously convicted by a nonunanimous jury is entitled to post-conviction relief under ORS 

138.530(1)(a) unless one of the other defenses in the PCHA 

applies. Watkins v. Ackley, 370 Or 604, 631-33, 523 P3d 86 

(2022). As a result, the post-conviction court, although acting without the benefit of the Oregon Supreme Court’s decision in Watkins, was incorrect. See State v. Jury, 185 Or App 

132, 136-37, 57 P3d 970 (2002), rev den, 335 Or 504 (2003) 

(stating that, on appeal, we apply the current law and not 

the law in effect at the time that the trial court ruled). The 

state concedes error, agrees that the post-conviction court 

should have denied its summary judgment motion and 

granted petitioner’s motion, and further agrees that, under 
228 Martin v. State of Oregon

Watkins, petitioner is entitled to post-conviction relief.4 We 

accept the state’s concession of error.

The only dispute between the parties relates to the 

appropriate remedy following our remand of this case to the 

post-conviction court. Petitioner contends that we must now 

direct the post-conviction court to dismiss the indictment 

and the original criminal case against petitioner. The state 

contends that the appropriate remedy here is a retrial. At 

oral argument, the parties asked that we resolve this issue 

now because it is likely to arise on remand. State v. Zielinski, 

321 Or App 8, 15, 515 P3d 397, rev den, 370 Or 694 (2022) 

(stating that we can resolve issues of law likely to arise on 

remand when we determine that it is appropriate to do so).

Petitioner’s argument that he is entitled to a remedy of dismissal of the indictment is based on a couple of 

passages from Watkins. First, petitioner relies on the court’s 

statement that

“certain constitutional errors in criminal proceedings are 

of such magnitude that they should be viewed as, in effect, 

stripping a court of its jurisdiction to enter judgment on a 

conviction, thus rendering the conviction ‘void.’”

Watkins, 370 Or at 625. Second, petitioner notes that the 

court, quoting Brooks v. Gladden, 226 Or 191, 195, 358 P2d 

1055 (1961), stated that Oregon’s Post-Conviction Hearing 

Act is available “‘to afford relief where the trial court had 

jurisdiction initially but lost it by departing from due process 

of law.’” Watkins, 370 Or at 626. Taken together, petitioner 

contends that the original criminal trial court “stripped 

itself of jurisdiction” at the time it accepted nonunanimous 

verdicts and could only dismiss the case at that point.

We reject petitioner’s argument and his interpretation of Watkins. First, Watkins does not state or even suggest 

that courts that commit constitutional error in the original 

criminal proceeding forever lose jurisdiction of the case or 

are otherwise precluded from proceeding with a retrial of 

the defendant that is free of constitutional error. It states 

that certain constitutional errors “in effect” may result in a 

4 The state does not assert that it raised any other PCHA defenses to the 

post-conviction petition.
Cite as 331 Or App 225 (2024) 229

court losing jurisdiction to enter a judgment of conviction in 

the original proceeding. Id. at 625 (emphasis added).

Second, even that more limited meaning was cabined by the later express statement in Watkins that, when 

“the cited cases speak of a conviction being rendered ‘void’ 

by the trial court’s loss of jurisdiction *** they do not mean 

that * * * the conviction immediately becomes a nullity and 

the convicted person can proceed as if it never had occurred.” 

Id. at 625 n 16.

Third, and finally, Watkins interpreted ORS 

138.530(1)(a), which addresses post-conviction relief for constitutional errors in the proceedings, in the context of ORS 

138.530(1)(b), which provides post-conviction relief when the 

criminal court lacks jurisdiction to impose a judgment of 

conviction. Id. at 623-24. Paragraph (1)(b) derives from federal common law, wherein lack of jurisdiction was originally 

the sole basis for habeas corpus relief. Id. at 625. Accordingly, 

Watkins explained post-conviction relief for constitutional 

errors in the proceedings—ORS 138.530(1)(a)—by using the 

term “jurisdiction” in the context that the term had been 

historically used in the common law of habeas corpus.5 The 

passages that petitioner cites as support for his argument 

that the trial court “stripped itself of jurisdiction” by entering an unconstitutional verdict were merely explaining that 

history. Indeed, Watkins used quotation marks on occasion 

when discussing the ideas of a “void” judgment and a court 

losing “jurisdiction” to enter a criminal judgment in the context of a claim for constitutional error. See, e.g., 370 Or at 

625 (interpreting the term “‘rendered the judgment void’” in 

the context of “its historical use in habeas cases to signify a 

certain kind or quality of procedural error that causes the 

trial court to lose ‘jurisdiction.’”). The selective use of quotation marks around those particular terms signifies the 

somewhat unusual use of those terms in that context.

In sum, we see nothing in Watkins that supports 

petitioner’s contention that the courts forever lost jurisdiction 

5 Petitioner generally alleged a claim under ORS 138.530. However, he alleged 

that his rights were violated in his criminal trial because he was denied his constitutional right to a unanimous jury, which is a claim under ORS 138.530(1)(a). 

That is the claim that was resolved on summary judgment and is before us.
230 Martin v. State of Oregon

over his criminal case when the original trial court erroneously accepted nonunanimous verdicts and entered a criminal judgment against him. We reject petitioner’s argument 

under Watkins that the post-conviction court must provide 

petitioner with the remedy of dismissal of the indictment. 

See also State v. Clyde, 328 Or App 222, 227, 537 P3d 170 

(2023), rev den, 371 Or 825 (2024) (concluding that defendant 

was entitled to a retrial and not to a dismissal of his case 

on double jeopardy grounds after his original convictions 

based on nonunanimous verdicts were reversed). However, 

as discussed above, we accept the state’s concession that the 

post-conviction court erred in granting the state’s motion for 

summary judgment and denying petitioner’s cross-motion 

for summary judgment. We reverse and remand for the 

post-conviction court to enter a judgment consistent with 

this opinion.

Reversed and remanded.