Peralta-Basilio v. Hill, 03-08-3017M.

• Court: Supreme Court of Oregon
• Writing for the Court: Landau
• Citation: 126 P.3d 1,203 Or. App. 449
• Decision Date: 28 December 2005
• Docket Number: A125997.,03-08-3017M.
• Parties: Filipe PERALTA-BASILIO, Appellant, v. Jean HILL, Superintendent, Snake River Correctional Institution, Respondent.

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126 P.3d 1 203 Or. App. 449 Filipe PERALTA-BASILIO, Appellant,
v.
Jean HILL, Superintendent, Snake River Correctional Institution, Respondent. 03-08-3017M. A125997. Court of Appeals of Oregon. Submitted on Record and Briefs June 20, 2005. Decided December 28, 2005.

Hari Nam S. Khalsa, Salem, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Jennifer S. Lloyd, Attorney-In-Charge, Collateral Remedies and Capital Appeals, filed the brief for respondent.

Before LANDAU, Presiding Judge, and BREWER, Chief Judge,^* and ORTEGA, Judge.

LANDAU, P.J.

Petitioner appeals a judgment dismissing his petition for post-conviction relief. We affirm.

The relevant facts are not in dispute. In 2002, petitioner was convicted of driving while under the influence of intoxicants, ORS

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813.010; assault in the second degree, ORS 163.175; and assault in the third degree, ORS 163.165. Petitioner entered into a plea agreement that permitted him to plead no contest on several of the charges. At his sentencing on September 17, 2002, the court imposed a dispositional and durational upward departure sentence on the third-degree assault conviction, based on findings that the offenses involved multiple victims; that some of the victims sustained permanent injuries that were greater than those typical for the offense; that petitioner had engaged in evasive conduct; and that he had exhibited a lack of concern for the welfare of the victims. That departure sentence—36 months in prison with 24 months' supervision—was within the maximum allowable penalty of five years for a Class C felony set out in ORS 161.605.

Petitioner eventually filed a petition for post-conviction relief, alleging, among other things, that his criminal trial counsel was constitutionally inadequate because counsel failed to object to the departure sentence on the ground that the state did not allege the aggravating factors in the indictment or prove those factors beyond a reasonable doubt to the trier of fact, as required by 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). The post-conviction court rejected all of petitioner's claims and dismissed the petition.

On appeal, petitioner advances two arguments. First, he argues that, because the departure sentence on the third-degree assault conviction was unconstitutional, the post-conviction court should have modified it. The state responds that, because petitioner did not assert that claim in his petition for post-conviction relief, it is waived.

The state is correct. Petitioner did not assert in his petition for post-conviction relief a claim that his sentence was unconstitutional. His sole claim was that his criminal trial counsel was constitutionally inadequate. See Pinnell v. Palmateer, 200 Or.App. 303, 334, 114 P.3d 515 (2005) (a claim not asserted in the post-conviction petition is deemed waived). In any event, the principles announced in Apprendi do not apply retroactively in collateral, post-conviction proceedings. Page v. Palmateer, 336 Or. 379, 84 P.3d 133, cert. den., ___ U.S. ___, 125 S.Ct. 205, 160 L.Ed.2d 110 (2004); Makinson v. Lampert, 199 Or.App. 418, 112 P.3d 365, rev. den., 339 Or. 230, 119 P.3d 790 (2005). The same holds true with respect to the principles set out in Blakely. McClanahan v. Hill, 200 Or.App. 9, 10, 112 P.3d 456, rev. den., 339 Or. 450 (2005).

Second, petitioner argues that his criminal trial counsel's failure to object to the departure sentence on Apprendi and Blakely grounds amounted to constitutionally inadequate assistance. To prevail on such a claim under the Oregon Constitution, petitioner must show by a preponderance of the evidence that his counsel "failed to exercise reasonable professional skill and judgment, and that petitioner suffered prejudice as a result." Lichau v. Baldwin, 333 Or. 350, 359, 39 P.3d 851 (2002). Similarly, to prevail under the federal constitution, petitioner must show that his counsel's performance was deficient and that the deficient performance caused actual prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Whether counsel exercised reasonable skill and judgment entails an examination of the state of the law at the time of the criminal trial. Wells v. Peterson, 315 Or. 233, 236, 844 P.2d 192 (1992) ("Failure of petitioner's criminal trial counsel [to raise an issue] was not inadequate assistance of counsel, because at the time of trial the meaning of the statute was not clearly settled."); Turner v. Maass, 103 Or.App. 109, 110 n. 3, 795 P.2d 617, rev. den., 310 Or. 547, 800 P.2d 789 (1990) (whether assistance of counsel was constitutionally adequate depends on the state of the law at the time counsel acted and not on whether the law has subsequently been overruled). That a particular issue is "unsettled" at the time, however, is not dispositive. As the Supreme Court explained in Burdge v. Palmateer, 338 Or. 490, 500, 112 P.3d 320 (2005), even if the state of the law is unsettled, the nature of the issue may be such that the benefits of raising it are so clear that any

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lawyer exercising reasonable professional skill and judgment would raise it.

In this case, petitioner...