Miller v. Lampert, (CC 0007403M; CA A120055; SC S51716).

• Decision Date: 12 January 2006
• Docket Number: (CC 0007403M; CA A120055; SC S51716).
• Citation: 340 Or. 1,125 P.3d 1260
• Parties: Michael Wayne MILLER, Petitioner on Review, v. Robert LAMPERT, Superintendent, Snake River Correctional Institution, Respondent on Review.
• Court: Oregon Supreme Court

125 P.3d 1260

340 Or. 1

Michael Wayne MILLER, Petitioner on Review, v. Robert LAMPERT, Superintendent, Snake River Correctional Institution, Respondent on Review.

(CC 0007403M; CA A120055; SC S51716).

Supreme Court of Oregon, En Banc.

Argued and submitted January 12, 2005.

Decided January 12, 2006.

On review from the Court of Appeals.^*

Rankin Johnson IV, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With him on the briefs were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Office of Public Defense Services.

Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Thomas J. Hester and Steven T. Wax, Portland, filed the brief for amici curiae OCDLA and Federal Defender.

KISTLER, J.

Petitioner raises two issues in this post-conviction proceeding. The first is whether Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), applies retroactively. Petitioner acknowledges that this court has held that it does not, see Page v. Palmateer, 336 Or. 379, 84 P.3d 133 (2004) (so holding), but he argues that later cases have undermined Page's reasoning. If Apprendi does not apply retroactively, the second issue is whether petitioner's trial counsel was constitutionally inadequate for failing to anticipate and argue for the federal rights that Apprendi later recognized.

In January 1998, petitioner entered a high school, grabbed a 16-year-old girl by the arm, reached up her skirt, and touched her vagina. The victim broke away, and petitioner again grabbed her and reached up her skirt. After the victim broke away a second time, petitioner blocked the door to prevent her from escaping. The state charged petitioner with one count of first-degree unlawful sexual penetration, ORS 163.411; one count of first-degree sex abuse, ORS 163.427; two counts of first-degree burglary, ORS 164.225; and one count of attempted first-degree rape, ORS 163.375. A jury convicted petitioner of all the charges except first-degree unlawful sexual penetration.

The trial court held a sentencing hearing on August 12, 1998. At that hearing, the state argued that the court should sentence petitioner as a dangerous offender because, among other things, he had committed a Class A felony and was suffering "from a severe personality disorder indicating a propensity toward crimes that seriously endanger the life or safety of another." See ORS 161.725(1) (stating criteria for dangerous offender sentence).¹ If imposed, a dangerous offender sentence would exceed the maximum sentence that the trial court otherwise could have imposed on petitioner. See ORS 161.725(1) (authorizing maximum indeterminate sentence of 30 years for dangerous offenders); ORS 161.737(1) and (2) (authorizing maximum determinate sentence equal to twice presumptive sentence for dangerous offenders).

In arguing that the court should sentence petitioner as a dangerous offender, the state relied primarily on the presentence investigation (PSI) report. The PSI revealed that petitioner had 10 prior convictions, including a robbery conviction, four prior convictions for exposing himself to women, and a conviction for battery in which, similarly to this case, he had grabbed a woman while exposing himself. The state also relied on a psychological evaluation, which concluded that petitioner is "a seriously character-disordered individual who is not amendable to community-based sex offender treatment and who poses a substantial threat to the safety and welfare of the community relative to commission of further sex crimes."

At the sentencing hearing, petitioner did not challenge the trial court's authority to sentence him as a dangerous offender, he did not contest the accuracy of his criminal history set out in the PSI, and he did not seek to cross-examine the psychologist on whose report the state relied. Defense counsel explained that he had been present during the psychological examination, that he had reviewed the psychologist's report, and that he did not "think there's much to be gained by having him present today." The only evidence that defense counsel offered at the sentencing hearing was an unsworn statement from a person who had worked with petitioner at Good Samaritan Ministries. She stated that, in her opinion, "if [petitioner] were to have a focused, intensive, concise program, he could be rehabilitated."²

Defense counsel acknowledged that the trial court could sentence petitioner as a dangerous offender but asked the court to impose a 75-month rather than a 30-year sentence. He told the court: "Clearly, based on [petitioner's] history, if you want to apply that statute, you can do it, but I ask if you consider doing that to use the 75 months as the base sentence." Counsel argued that a 75-month sentence both would give petitioner sufficient incentive to take advantage of various programs and also would be adequate to protect society.

Relying on the PSI and the psychological evaluation that the state had submitted, the trial court found that petitioner was a dangerous offender. The court reasoned:

"[Petitioner's] situation is one where I think the [c]ourt would be, quite frankly, really not living up to its obligation as one of the linchpins of an ordered society to say anything other than that he certainly fits the criteria for dangerous offender sentencing. You just have to take [the psychological] reports and evaluations and just drop them in the dust bin to say otherwise."

Pursuant to the dangerous offender statute, the trial court imposed, on petitioner's two burglary convictions, concurrent 96-month determinate sentences and concurrent 30-year indeterminate sentences. The court imposed guidelines sentences on petitioner's other convictions and ruled that those sentences would run concurrently with the dangerous offender sentences. Petitioner did not appeal from the resulting judgment.

Almost two years after petitioner's conviction became final, the United States Supreme Court issued its decision in Apprendi. Relying on the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment, the Court held that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490, 120 S.Ct. 2348.

Shortly after the Court issued its decision in Apprendi, petitioner filed a petition for post-conviction relief. Relying on Apprendi, he alleged that the trial court had imposed his sentence in violation of the Sixth Amendment and the Due Process Clause because a jury had not found beyond a reasonable doubt that he was a dangerous offender. Alternatively, he alleged that his trial counsel had been constitutionally inadequate for failing to assert that he had a right under the federal constitution to have a jury make the requisite factual findings beyond a reasonable doubt. The post-conviction court denied both claims for relief.

Petitioner appealed, renewing the arguments that he had made to the post-conviction court. While petitioner's case was on appeal, this court issued its decision in Page v. Palmateer, holding that Apprendi does not apply retroactively to judgments that became final before the decision in Apprendi issued. The Court of Appeals affirmed the post-conviction court's judgment from the bench, presumably relying on this court's decision in Page and its own decision in Teague v. Palmateer, 184 Or.App. 577, 591-92, 57 P.3d 176 (2002), rev. den., 335 Or. 181, 63 P.3d 28 (2003), holding that trial counsel had not been inadequate in failing to foresee Apprendi.

We allowed review primarily to consider petitioner's argument that our decision in Page is no longer good law in light of later developments in federal law. In analyzing that issue, we begin with a discussion of our decision in Page and a later United States Supreme Court decision addressing whether Apprendi applies retroactively. We then turn to petitioner's arguments and explain why they do not persuade us that we should retreat from our holding in Page.

Procedurally, the facts in Page are identical to the facts here. In Page, as in this case, the trial court sentenced the petitioner as a dangerous offender pursuant to ORS 161.725(1) and imposed a 30-year indeterminate sentence. 336 Or. at 381-82, 84 P.3d 133. The petitioner's conviction in Page became final in 1998, as did petitioner's conviction. Id. at 382, 84 P.3d 133; see Caspari v. Bohlen, 510 U.S. 383, 390, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994) (defining when convictions become final for purposes of retroactivity analysis). Approximately two years later, the Court issued its decision in Apprendi, and the petitioner in Page filed a petition for post-conviction relief, arguing that the trial court had imposed his sentence in violation of Apprendi. Id.

As in this case, the petitioner in Page did not dispute that Apprendi had announced a new rule or that his conviction became final before the Court issued its decision in Apprendi. The only question before the court in Page was whether Apprendi applied retroactively. Page, 336 Or. at 383, 84 P.3d 133. On that issue, this court explained that federal retroactivity principles govern whether a new federal rule applies retroactively in state court. Id. at 385-87, 84 P.3d 133.

Following the principles announced in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality), this court explained that, with two exceptions, a new federal constitutional rule does not apply retroactively. Page, 336 Or. at 388, 84 P.3d 133. The petitioner in Page did not argue that the first exception that Teague recognized — for rules that "place[] certain kinds of primary, private individual...