Makinson v. Lampert
Citation | 112 P.3d 365,199 Or. App. 418 |
Parties | Mark Eugene MAKINSON, Appellant, v. Robert LAMPERT, Superintendent, Snake River Correctional Institution, Respondent. |
Decision Date | 11 May 2005 |
Court | Court of Appeals of Oregon |
Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Jennifer S. Lloyd, Attorney-In-Charge, Collateral Remedies and Capital Appeals, for motion.
Priscilla Maloney contra.
Before LINDER, Presiding Judge, and BREWER, Chief Judge, and LANDAU, Judge.
On Respondent's Motion for Summary Affirmance January 14, 2005.
On Appellant's Response to Respondent's Motion for Summary Affirmance January 27, 2005.
Petitioner appeals from a judgment dismissing his amended petition for post-conviction relief. In his amended petition, petitioner alleged a number of claims of inadequate assistance of trial and appellate counsel. On appeal, petitioner does not challenge the trial court's dismissal of the claims alleged in his amended petition. Instead, he argues for the first time (1) that his sentencing counsel should have argued that the departure sentence that the trial court imposed on one of his convictions violated the Sixth Amendment to the United States Constitution under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), on the ground that the departure factors were not alleged in the indictment, submitted to a jury, and proved beyond a reasonable doubt, and (2) that the sentencing court erred under Blakely and Apprendi by imposing the sentence. Respondent has filed a motion for summary affirmance, arguing that petitioner has waived the claims that he asserts for the first time on appeal by failing to plead them in a petition or amended petition for post-conviction relief. We grant the motion for summary affirmance.
ORS 138.550(3) provides:
In Bowen v. Johnson, 166 Or.App. 89, 92-93, 999 P.2d 1159, rev. den., 330 Or. 553, 10 P.3d 943 (2000), we stated:
Because petitioner failed to allege the claims that he asserts on appeal in a pleading before the post-conviction court, he has waived those claims in the present proceeding.
Petitioner nonetheless argues that we should deny the state's motion for summary affirmance because the errors that he asserts on appeal constitute plain error under this court's decision in State v. Sawatzky, 195 Or.App. 159, 172, 96 P.3d 1288 (2004) ( ). We reject that argument with little fanfare. Although we have applied the plain error doctrine in certain circumstances in post-conviction appeals,1 we have never applied it, in derogation of ORS 138.550(3), to permit consideration of a claim for relief that was not raised in a petition before the post-conviction court. We decline to do so here.
In addition, petitioner asserts that the holding in Sawatzky must be applied retroactively to invalidate his sentence in this post-conviction action. He is also mistaken in that regard. In Page v. Palmateer, 336 Or. 379, 390, 84 P.3d 133, cert. den., ___ U.S. ___, 125 S.Ct. 205, 160 L.Ed.2d 110 (2004), the Oregon Supreme Court held that the principles announced in Apprendi do not apply retroactively to Oregon post-conviction proceedings. Later that year, the United States Supreme Court held in Schriro v. Summerlin, 542 U.S. ___, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), that the aspect of Apprendi pertaining to the right to jury trial does not apply retroactively in collateral proceedings. The court expressly reserved for decision, however, the question whether the standard of proof aspect of the Apprendi rule applies retroactively in collateral proceedings. Schriro, 542 U.S. at ___, 124 S.Ct. at 2522 n. 1, 159 L.Ed.2d at 448 n. 1. The Oregon Supreme Court later accepted review of this court's decision in Miller v. Lampert, 194 Or.App. 329, 95 P.3d 757 (2004), rev. allowed, 337 Or. 555, 101 P.3d 809 (2004), suggesting that that court may reconsider its decision in Page insofar as it held that the standard of proof aspect of Apprendi does not apply retroactively in collateral proceedings.
Nevertheless, for two reasons, that possibility is of no avail to petitioner. First, unless and until the Supreme Court modifies its holding in Page, that decision binds this court. Second, petitioner's assertion that Miller is on all fours with this case because the petitioner there also failed to preserve his Apprendi claims is incorrect. In Miller, the petitioner failed to preserve his Apprendi claims before the sentencing court for purposes of direct appeal, but they were the cornerstone of his petition for post-conviction relief. Here, petitioner failed to make any Apprendi claims before the post-conviction court. There is no authority to support petitioner's argument that any putative retroactive reach of Apprendi extends so far as to require the...
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