Page v. Palmateer

• Citation: 84 P.3d 133,336 Or. 379,336 Ore. 379
• Parties: Robert J. PAGE, Jr., Petitioner on Review, v. Joan PALMATEER, Superintendent, Oregon State Penitentiary, Respondent on Review.
• Decision Date: 05 February 2004
• Court: Supreme Court of Oregon

84 P.3d 133

336 Or. 379

336 Ore. 379

Robert J. PAGE, Jr., Petitioner on Review, v. Joan PALMATEER, Superintendent, Oregon State Penitentiary, Respondent on Review.

CC99C-11782, CA A114830, SC S50171.

Supreme Court of Oregon, En Banc.

Argued and Submitted November 4, 2003.

Decided February 5, 2004.

George W. Kelly, Eugene, argued the cause and filed the briefs for petitioner on review.

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

Thomas J. Hester, Assistant Federal Public Defender, Portland, filed a brief on behalf of amicus curiae Federal Public Defender.

DE MUNIZ, J.

The issue in this case is whether the federal constitutional right announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), applies retroactively to post-conviction relief proceedings in Oregon. We hold that the right announced in Apprendi does not apply retroactively and we affirm the Court of Appeals' decision to that effect.

We draw the undisputed facts from the briefs filed in this court and in the Court of Appeals, and from the record of the post-conviction proceedings in the trial court. In September 1996, petitioner was charged by indictment with two counts of robbery in the first degree, ORS 164.415, one count of kidnapping in the first degree, ORS 163.235, one count of assault in the fourth degree, ORS 163.160 (1995), one count of robbery in the third degree, ORS 164.395, one count of menacing, ORS 163.190, and two counts of harassment, ORS 166.065 (1995). The indictment set out the allegations supporting each of those charges. A jury convicted petitioner of kidnapping in the first degree and assault in the fourth degree. The maximum sentence that petitioner could have received for the kidnapping conviction was 20 years' imprisonment. See ORS 161.605(1) (20-year maximum sentence for Class A felony). For the assault conviction, the maximum sentence was one-year imprisonment. See ORS 161.545 (one-year maximum sentence for misdemeanor).

At sentencing, the trial court reviewed petitioner's criminal history and concluded that it would be appropriate to sentence petitioner as a "dangerous offender" under ORS 161.725(1). That statute provides, in part:

"[T]he maximum term of an indeterminate sentence of imprisonment for a dangerous offender is 30 years, if the court finds that because of the dangerousness of the defendant an extended period of confined correctional treatment or custody is required for the protection of the public and if it further finds * * * that one or more of the following grounds exist:

"(a) The defendant is being sentenced for a Class A felony, and the court finds that the defendant is suffering from a severe personality disorder indicating a propensity toward crimes that seriously endanger the life or safety of another."

The trial court acknowledged that determining whether petitioner could be sentenced as a dangerous offender involved resolving some questions of fact. The court nevertheless sentenced petitioner as a dangerous offender and imposed the maximum term of imprisonment, 30 years, provided in ORS 161.725(1).

Petitioner unsuccessfully appealed his conviction and dangerous offender sentence. State v. Page, 156 Or.App. 399, 967 P.2d 530 (1998), rev. den., 328 Or. 115, 977 P.2d 1171 (1998). In February 1999, petitioner filed a petition for post-conviction relief, alleging that he had been denied adequate assistance of trial counsel and due process of law in violation of the Fifth and Fourteenth Amendments to the United States Constitution.

In June 2000, the United States Supreme Court decided Apprendi. In that case, the Supreme Court held, based on the Sixth and Fourteenth Amendments to the United States Constitution, 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." Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. Petitioner then filed a supplemental petition for post-conviction relief in September 2000, in which he claimed that he "was sentenced under the Dangerous Offender Statute withou[t] providing for indictment on the increased charge and without submitting the increased charge to a jury and requir[ing] the predicate facts be proven beyond a reasonable doubt." Petitioner later expanded on that claim in a supplemental trial memorandum.

The trial court denied petitioner post-conviction relief. In a letter opinion, the court stated that it found "no merit in petitioner's complaints about his trial counsel. None of petitioner's other claims have merit either, and are adequately addressed in Defendant's Trial Memorandum." Petitioner appealed, arguing that Apprendi entitled him to post-conviction relief. The Court of Appeals affirmed per curiam, based on its previous decision in Teague v. Palmateer, 184 Or.App. 577, 57 P.3d 176 (2002) (Teague,) in which it had held that Apprendi did not apply retroactively to Oregon post-conviction proceedings. We allowed review.

Petitioner argues here that, pursuant to this court's decision in State v. Fair, 263 Or. 383, 502 P.2d 1150 (1972), we are free to adopt our own rules in determining whether to apply a newly announced constitutional principle, even a federal one, retroactively. Therefore, petitioner contends, we should exercise that power and choose to apply Apprendi retroactively to Oregon post-conviction proceedings.

The state's response is threefold. First, the state contends that ORS 138.550(2) bars petitioner's challenge to his sentence, see Palmer v. State of Oregon, 318 Or. 352, 354, 867 P.2d 1368 (1994)

(so holding), because petitioner could have raised his claim at sentencing and on direct review. Second, the state contends that this court should not apply Apprendi retroactively to Oregon collateral proceedings. Finally, the state argues that, even if the Apprendi rule should apply retroactively, it does not apply to dangerous offender findings required by ORS 161.725(1)(a). We address only the state's second argument, because it is dispositive.

The state asserts that, under the Supreme Court's decision in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (Lane,) this court cannot apply the federal constitutional right announced in Apprendi retroactively to collateral proceedings in Oregon. As discussed below, we agree.

Because the Court of Appeals based its decision in this case on its retroactivity analysis in Teague, we begin our analysis with a brief discussion of that case. In Teague, the Court of Appeals examined en banc whether Apprendi should apply retroactively to post-conviction proceedings in Oregon. 184 Or. App. at 579, 57 P.3d 176. A majority of the court concluded, based on its application of federal retroactivity principles, that it should not. Id. at 592, 57 P.3d 176. In reaching that conclusion, the court observed that "Oregon courts are not obligated to follow federal retroactivity principles in state post-conviction proceedings, but it is well settled that we do so for prudential reasons." Id. at 580-81, 57 P.3d 176. The court based that statement on its review of both Oregon and federal case law, in particular, this court's decision in Fair.

In Fair, this court addressed whether the rule that it had announced in a recently decided case would apply retroactively. 263 Or. at 385, 502 P.2d 1150. The court observed that, in determining whether to apply a new rule of law retroactively, it most recently had followed the retroactivity rules applied by the Supreme Court. Id. The court observed, however, that it had declined to follow the Supreme Court's ruling on the retroactivity of the rule announced in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), because it already had made its own determination as to whether the Escobedo rule should apply retroactively in Oregon and had chosen to continue to follow its own rule. Fair, 263 Or. at 387, 502 P.2d 1150. The court noted that it later conformed its rule regarding Escobedo to the rule applied by the Supreme Court and stated that, when later faced with determining the retroactive application of a federally guaranteed right, it followed the federal rule. Id.

Based on its review of the case law, the Fair court then stated:

"We may draw two conclusions from our recent decisions on retroactivity. First, we are free to choose the degree of retroactivity or prospectivity which we believe appropriate to the particular rule under consideration, so long as we give federal constitutional rights at least as broad a scope as the United States Supreme Court requires. Secondly, we have tended to restrict the retroactive application of newly-announced rights, giving them only the application which the Supreme Court has adopted as a minimum. In the present case since we are dealing with a new principle of law which rests entirely on our own Constitution the determination of retroactivity or prospectivity is for us alone. The decisions of the United States Supreme Court are not binding on us, but we may look to those cases for guidance."

Id. at 387-88, 502 P.2d 1150. Based on that discussion from Fair, and the Supreme Court's statement in Johnson v. New Jersey, 384 U.S. 719, 733, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), that states are "entirely free to effectuate under their own law stricter standards than those we have laid down and to apply those standards in a broader range of cases than is required by this decision," the Court of Appeals stated in Teague:

"The federal Supremacy Clause does not require states to adhere to federal retroactivity principles in determining whether to grant post-conviction relief to Oregon prisoners who rely on newly announced federal constitutional pronouncements. Rather, states are free

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