No. 348 July 6, 2023 807

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

DONALD LEE MANDELL,

Petitioner-Appellant,

v.

Jamie MILLER, 

Superintendent, 

Snake River Correctional Institution,

Defendant-Respondent.

Malheur County Circuit Court

20CV31010; A177645

J. Burdette Pratt, Senior Judge.

Submitted March 10, 2023.

Jedediah Peterson and O’Connor Weber LLC filed the 

briefs for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, 

Solicitor General, and Erin K. Galli, Assistant Attorney 

General, filed the briefs for respondent.

Before Lagesen, Chief Judge, and Kamins, Judge, and 

Armstrong, Senior Judge.

KAMINS, J.

Affirmed.
808 Mandell v. Miller

KAMINS, J.

Petitioner appeals from a judgment denying his 

petition for post-conviction relief (PCR), raising three 

assignments of error, each of which relates to the fact that, 

as permitted by the law at the time, the jury that convicted 

petitioner was instructed that only 10 jurors needed to 

agree on his guilt. The record does not indicate, however, 

whether the jury in fact reached unanimity, because neither 

defense counsel nor the prosecutor requested that the jurors 

be polled. Because we conclude that petitioner is not entitled 

to relief in those circumstances, we affirm.

We accept the post-conviction court’s supported 

implicit and explicit factual findings and review for legal 

error. Green v. Franke, 357 Or 301, 312, 350 P3d 188 (2015). 

Petitioner was convicted in 2016 of two counts of sexual 

abuse in the first degree, and the judgment of conviction 

became final the following year. In 2018, petitioner initiated a post-conviction proceeding on allegations unrelated 

to this case, which was subsequently denied.1 See Mandell 

v. Cain, 315 Or App 471, 500 P3d 762 (2021), rev den, 369 

Or 507 (2022) (affirming that denial). Petitioner filed the 

instant petition in 2020, after the United States Supreme 

Court held that the Sixth Amendment to the United States 

Constitution requires that a jury reach a unanimous verdict 

to convict someone of a felony. Ramos v. Louisiana, 590 US 

___, 140 S Ct 1390, 206 L Ed 2d 583 (2020).

Petitioner raised three claims for relief, which 

correspond to his three assignments of error on appeal. 

The first claim contended that his trial counsel 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 by our decision in Smith v. Kelly, where 

we held that trial counsel do not perform deficiently by failing to raise the unanimity issue before Ramos was litigated. 

318 Or App 567, 569, 508 P3d 77 (2022), rev den, 370 Or 822 

1 In this appeal, the superintendent does not rely on any of the procedural 

defenses in the Post-Conviction Hearings Act.
Cite as 326 Or App 807 (2023) 809

(2023); see also Aaron v. Kelly, 325 Or App 262, 266, 528 

P3d 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’s remaining assignments of error challenge the PCR court’s denial of standalone claims that his 

convictions were obtained in violation of the unanimity rule 

announced in Ramos. We begin our discussion with a brief 

overview of the pertinent law. As relevant here, the PostConviction Hearings Act provides that to obtain relief, petitioners must establish that there was a “substantial denial” 

of their constitutional rights in the proceedings that resulted 

in their conviction. ORS 138.530(1)(a). The Supreme Court 

has recently interpreted that phrase to mean that the denial 

of a constitutional right must have been “(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). 

The court then applied that interpretation to conclude that 

petitioners who were convicted by nonunanimous jury verdicts are entitled to post-conviction relief because such convictions “violate[] our sense of what is fundamentally fair in 

a criminal proceeding.” Id. at 633.

The court did not address, however, whether petitioners are likewise entitled to relief when the underlying 

jury verdict may, or may not, have been unanimous. In 

Watkins, the erroneous jury instruction was clearly “consequential in the criminal justice proceeding,” since without it, the petitioner would not have been convicted. Id. at 

608 (noting that all four of the petitioner’s convictions were 

based on nonunanimous verdicts). The question for us, then, 

is whether the same is true in this case, where the record 

is silent on whether the jury’s verdicts were, in fact, unanimous. Because petitioner seeks PCR, he bears the burden 

to prove that the instruction was consequential to his case. 

ORS 138.620(2) (“The burden of proof of facts alleged in the 

petition shall be upon the petitioner to establish such facts 

by a preponderance of the evidence.”).

Turning to the parties’ arguments, petitioner offers 

evidence presented by the state in a different case that 
810 Mandell v. Miller

approximately two thirds of jury trials from 2001 to 2018 

included at least one nonunanimous conviction. In petitioner’s view, that shows that it is more likely than not that one 

or both of his convictions were based on a nonunanimous 

verdict. The superintendent responds that such general statistics do not indicate that either—let alone both—of the verdicts in petitioner’s trial were actually nonunanimous. The 

superintendent further points out that accepting petitioner’s 

argument would mean presuming prejudice with respect to 

every conviction in every case where the jury was not polled, 

thereby relieving petitioners of their burden of proof.

We agree with the superintendent. General statistical information about the criminal justice system as a whole 

does not establish what happened in petitioner’s particular 

case. See McDonnell v. Premo, 309 Or App 173, 187, 483 P3d 

640 (2021), rev den, 369 Or 507 (2022) (“[A]ctual prejudice 

must be shown.” (Emphasis in original.)); Id. at 192 (presuming prejudice “is not permissible in the post-conviction 

context under Oregon law”). Because there is nothing in this 

record to suggest that the verdicts in petitioner’s case were 

actually nonunanimous, we conclude that petitioner has 

not met his burden to prove that the nonunanimous jury 

instruction was consequential to his conviction.

We are guided in that conclusion by the Supreme 

Court’s decisions applying Ramos to criminal cases on direct 

review. In that posture, the court will correct the giving of 

an instruction allowing for the jury to return a nonunanimous guilty verdict only when the record indicates that the 

verdict was, in fact, nonunanimous. Compare State v. Ulery, 

366 Or 500, 502, 464 P3d 1123 (2020) (reversing as plain 

error where the verdicts were nonunanimous), with State v. 

Flores Ramos, 367 Or 292, 333, 478 P3d 515 (2020) (affirming convictions where the verdicts were unanimous because 

the error was harmless beyond a reasonable doubt).

In State v. Dilallo, the Supreme Court considered an 

unpreserved challenge to a nonunanimous jury instruction 

when there was no evidence as to whether the verdict was 

unanimous or not. 367 Or 340, 346, 478 P3d 509 (2020). The 

court declined to exercise its discretion to correct the error 

because, had the defendant objected or requested a jury poll, 
Cite as 326 Or App 807 (2023) 811

the result of that poll “would not only be important, it would 

likely be dispositive.” Id. at 347. The court further reasoned 

that reversing the defendant’s conviction would lead to an 

“anomaly” in that “many defendants in cases where the 

jury was polled will have their convictions affirmed if the 

poll revealed that the verdicts were unanimous,” but defendants with unpolled juries “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 [they] had objected.” Id. at 348.

The flaw in the record in Dilallo is equally present here, and a reversal would create that same anomaly. 

Without a jury poll, petitioner does not have the “dispositive” evidence to meet his burden of proof. Id. at 347. Were 

we to conclude otherwise, petitioners who were convicted by 

unpolled juries would be entitled to collateral relief even if 

the verdict was unanimous, while petitioners whose juries 

were polled and revealed to be unanimous would, in effect, 

be in a worse position than if they had not raised the issue 

at all. The contrary result would effectively relieve petitioners of their burden of proof altogether, since it would require 

relief for every unpolled jury verdict.

For those reasons, we conclude that post-conviction 

petitioners cannot prove that a Ramos violation was consequential in their case when the record does not indicate 

whether the jury that convicted them was, in fact, nonunanimous, and are therefore not entitled to relief.

Affirmed.