White v. Premo

• Decision Date: 17 May 2017
• Docket Number: A154435
• Citation: 397 P.3d 504,285 Or.App. 570
• Parties: Lydell Marcus WHITE, Petitioner-Appellant, v. Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant-Respondent.
• Court: Oregon Court of Appeals

285 Or.App. 570

397 P.3d 504

Lydell Marcus WHITE, Petitioner-Appellant,

v.Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant-Respondent.

A154435

Court of Appeals of Oregon.

Argued and submitted September 15, 2015.

May 17, 2017

Ryan T. O'Connor, Portland, argued the cause for appellant. With him on the briefs was O'Connor Weber LLP.

Jeff J. Payne, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Sercombe, Presiding Judge, and Hadlock, Chief Judge, and Tookey, Judge.^*

SERCOMBE, P.J.

In 1993, at 15 years old, petitioner and his twin brother murdered an elderly couple.¹ Petitioner was waived into adult court and, based on a stipulated facts trial, was convicted of one count of aggravated murder, one count of murder, and one count of first-degree robbery. Following a sentencing hearing, the trial court sentenced petitioner to an indeterminate life sentence on the aggravated murder conviction, an 800-month term of imprisonment, to be served concurrently with the life sentence, on the murder conviction, and a 36-month term of imprisonment, to be served consecutively to the aggravated murder and murder sentences, on the first-degree robbery conviction. In 2013, following the United States Supreme Court's decision in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), petitioner filed a successive petition for post-conviction relief.² The superintendent filed a motion for summary judgment, asserting that the petition was successive and untimely and, therefore, "barred by both ORS 138.510(3) and ORS 138.550(3)." The post-conviction court agreed and, accordingly, granted the motion for summary judgment and dismissed the petition. Petitioner appeals the resulting judgment and, on appeal, we conclude, as we did in Kinkel v. Persson , 276 Or.App. 427, 367 P.3d 956, rev. allowed , 359 Or. 525, 379 P.3d 514 (2016), and Cunio v. Premo , 284 Or.App. 698, 395 P.3d 25 (2017), that the statutory rule against successive petitions bars petitioner from raising the grounds for relief set forth in his petition in this case. Accordingly, we affirm the judgment of the post-conviction court.

As noted, based on acts committed when he was 15 years old, petitioner was convicted of aggravated murder, murder, and first-degree robbery. We affirmed the trial court's judgment without opinion on direct appeal, and the Supreme Court denied review. See State v. White , 139 Or.App. 136, 911 P.2d 1287, rev. den. , 323 Or. 691, 920 P.2d 550 (1996). In 1997, petitioner sought post-conviction relief, requesting that the judgment of conviction be set aside and the sentences be vacated. Among other things, petitioner asserted that defense counsel was inadequate for failing to object to the sentence as "illegal and unauthorized." He also claimed that "[t]he trial court was in error for imposing a life sentence and 836 month[s] on petitioner[,] a remanded juvenile. The sentence violates the Eighth Amendment protection against Cruel and Unusual punishment." The post-conviction court denied relief and, on appeal from the post-conviction judgment, we, again, affirmed without opinion and the Supreme Court, again, denied review. See White v. Thompson , 163 Or.App. 416, 991 P.2d 63 (1999), rev. den. , 327 Or. 607, 994 P.2d 132 (2000). Petitioner later filed a second unsuccessful petition for post-conviction relief. We summarily affirmed the judgment in that case, and the Supreme Court entered an order denying review.

In 2012, the Board of Parole and Post-Prison Supervision held a prison term hearing and issued an order establishing petitioner's prison term on the life sentence imposed for the aggravated murder conviction. See State ex rel. Engweiler v. Felton , 350 Or. 592, 629, 260 P.3d 448 (2011) ("[P]risoners sentenced for aggravated murder are entitled to a parole hearing at which the board must either set a release date or explain why it has chosen not to do so."). As petitioner set out in his petition for post-conviction relief, the board "set a prison term of 288 months on the conviction for Aggravated Murder."³

Also in 2012, the United States Supreme Court decided Miller , in which it held that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders." 567 U.S. at 479, 132 S.Ct. at 2469. The Court explained:

"Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. * * * And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it."

Id. at 477–78, 132 S.Ct. at 2468.

In his petition in this case, petitioner claimed that he had been denied adequate assistance of trial counsel in a number of ways, including that counsel failed to "object to, as unconstitutionally disproportionate punishment, the imposition of the 800-month sentence on the Murder conviction that would likely greatly exceed the sentence on the more serious charge of Aggravated Murder," and failed to "object to the constitutionality of the 800-month sentence on the grounds that it constituted a de facto sentence of Life without the possibility of parole."⁴ He also asserted that he had received inadequate and ineffective assistance of post-conviction counsel and was, therefore, deprived of the "ability to fully challenge the validity of his sentences in subsequent proceedings." Petitioner acknowledged that the petition was successive but noted that ORS 138.550"allows for successive petitions when 'the court on hearing a subsequent petition finds grounds for relief asserted which could not reasonably have been raised in the initial or amended petition.' " He asserted that he could not reasonably have raised the ground for relief set forth in the petition prior to, among other things, the Supreme Court's decision in Miller .

The superintendent filed a motion for summary judgment asserting, among other things, that the petition was time barred under ORS 138.510(3) and did not fall within the escape clause under that statute.⁵ Furthermore, the superintendent asserted that the grounds for relief in the petition either had been or could have been raised in the original petition for post-conviction relief and, therefore, the successive petition was barred under ORS 138.550(3).⁶

The post-conviction court held a hearing on the motion and, ultimately, agreed with the superintendent that the petition was untimely and successive and that petitioner had "not demonstrated * * * that [any of his] allegations qualify for any escape clause." Accordingly, the court granted the superintendent's motion for summary judgment and dismissed the petition.

On appeal, in his first assignment of error, petitioner contends that the trial court erred when it denied him relief on his claim of inadequate and ineffective assistance of trial counsel. In particular, he asserts that the 1995 judgment in his criminal case imposed a de facto life sentence without the possibility of release.⁷ He asserts that he is entitled to relief because his sentences "violate the ban on cruel and unusual punishments in Article I, section 16, of the Oregon Constitution, [and] * * * the Eighth Amendment to the United States Constitution," and the 800-month sentence for murder is "disproportionate to a life sentence with the possibility of release" for aggravated murder. Furthermore, he contends that his late and successive petition for post-conviction relief satisfies the escape clauses in ORS 138.510 and ORS 138.550 because (1) he "could not reasonably have anticipated the rule from Miller and thus * * * could not have raised the grounds for relief here in a timely post-conviction proceeding" and (2) he could not reasonably have raised his disproportionality challenge until after the board's 2012 order setting his prison term on the aggravated murder sentence.⁸ The superintendent responds, in part, that the petition is untimely and successive and that petitioner's claims are barred in light of ORS 138.510 and ORS 138.550. He also asserts that, even if petitioner's claims were not barred, they would nevertheless fail on the merits. Because it is dispositive, we address the question whether ORS 138.550 precludes petitioner from obtaining relief on the grounds raised in his petition.

The state post-conviction relief act provides "that post-conviction petitions must be filed within two years after the challenged conviction becomes final, ORS 138.510(3), and it also bars successive petitions, ORS 138.550(3)." Verduzco v. State of Oregon , 357 Or. 553, 561, 355 P.3d 902 (2015). However, both of those procedural bars "contain identically worded 'escape clauses.' " Id . Under the escape clauses, "[e]ssentially, if [a] petitioner could not reasonably have raised the grounds for relief alleged in his [successive] petition either in a timely fashion or in the first petition, then those state procedural bars do not prevent petitioner from pursuing the grounds for relief alleged in his second post-conviction petition." Id.

In Verduzco , the Oregon Supreme Court interpreted and applied ORS 138.550. As the court explained, under ORS 138.550(2), if a petitioner

"has appealed from a judgment of conviction and if the petitioner could have raised a ground for relief on direct appeal, then the petitioner cannot raise that ground for relief in a post-conviction petition 'unless such ground

...