White v. Premo

286 Or.App. 123

399 P.3d 1034

Laycelle Tornee WHITE, Petitioner-Appellant,

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

A154420

Court of Appeals of Oregon.

Argued and submitted November 6, 2015.

June 14, 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 Duncan, Presiding Judge, and DeVore, Judge, and Garrett, Judge.^*

DUNCAN, P.J.

Petitioner was convicted of aggravated murder and murder for acts that he committed with his twin brother in 1993, when they were 15. In the petition for post-conviction relief that gives rise to this appeal, petitioner alleged that his 800-month sentence for murder was unconstitutional because it was vertically disproportionate to his sentence for aggravated murder and because it was a de facto life sentence for a juvenile; he further alleged that his trial and previous post-conviction counsel were constitutionally inadequate for failing to raise those issues. The post-conviction court granted summary judgment to the state,¹ ruling that the asserted grounds for relief were untimely and successive and did not fall within the escape clauses of ORS 138.510(3) and ORS 138.550(3).² Petitioner now appeals the resulting judgment.

As we will explain, the issues raised by petitioner's appeal have been conclusively resolved by three other cases involving petitioners who were convicted of murder or aggravated murder as juveniles, including, most recently, a decision concerning post-conviction claims by petitioner's twin brother. See White v. Premo , 285 Or.App. 570, 397 P.3d 504 (2017) ( Lydell White ); Cunio v. Premo , 284 Or.App. 698, 395 P.3d 25 (2017) ; Kinkel v. Persson , 276 Or.App. 427, 367 P.3d 956, rev. allowed , 359 Or. 525, 379 P.3d 514 (2016). In light of those cases, we affirm the judgment of the post-conviction court.

I. BACKGROUND

Petitioner and his twin brother, Lydell White, were 15 when they murdered an elderly couple in 1993. Petitioner was waived into adult court and, on stipulated facts, was convicted of one count of aggravated murder and one count of murder. He received an indeterminate life sentence on the aggravated murder conviction and an 800-month concurrent sentence on the murder conviction.

Petitioner filed a direct appeal in which he argued that the 800-month sentence was unlawful. His opening brief on appeal presented the following question: "Was the sentence of 800 months imposed upon [petitioner] for his conviction for murder excessive, and did it constitute cruel and unusual punishment?"³ In the "Summary of Argument" section of his brief, petitioner stated:

"The sentence of 800 months imposed upon [petitioner] for murder was excessive and constitutes cruel and unusual punishment. First, this sentence is disproportionate, in violation of Article I, Section 16 of the Oregon Constitution. Although permitted to do so by the statute existing at the time, the court violated [petitioner's] constitutional right to be free of excessive punishment by imposing 800 months, which is more than twice the presumptive sentence [petitioner] should have received. Second, because [petitioner] was a juvenile, the sentence of 800 months operates as a mandatory minimum sentence, in fact if not in name. This was impermissible, and [petitioner's] sentence should be vacated."

Although that summary did not invoke the federal constitution, the argument in support of his sole assignment of error referred to the Eighth Amendment to the United States Constitution:

"* * * The court apparently had [statutory] authority to impose 800 months. However, [petitioner] challenges the sentence of 800 months based on the proportionality clause of Article I, section 16 of the Oregon Constitution. In addition, the sentence was excessive, cruel and unusual under the Eighth Amendment to the United States Constitution."

After developing his proportionality argument, petitioner further contended:

"There can be no doubt that the crimes in this case were violent and offensive to society. However, [petitioner] was only 15 at the time the crimes were committed and 17 at the time of sentencing. The philosophy of the juvenile criminal code should be one of rehabilitation and not vindictive justice. The sentence of 800 months imposed upon [petitioner] was excessive, and for the reasons given, constituted cruel and unusual punishment."

The state, in its response, asserted that petitioner was "rely[ing] upon Article I, section 16, of the Oregon Constitution, which requires that 'all penalties shall be proportioned to the offense' and prohibits the infliction of 'cruel and unusual punishments,' and upon the comparable Cruel and Unusual Punishments Clause of the Eighth Amendment to the United States Constitution." The state responded to the merits of the arguments, but its threshold contention was that the issues were not preserved because petitioner's arguments in the trial court had not cited Article I, section 16, the Eighth Amendment, or cases decided under those provisions, nor had petitioner's trial counsel "sa[id] or suggest[ed] 'cruel and unusual punishment,' and nowhere [did trial] counsel suggest that the sentence is disproportionate to the offense." (Boldface omitted.) We affirmed without opinion, and the Supreme Court denied review. State v. White , 139 Or.App. 136, 911 P.2d 1287, rev. den. , 323 Or. 691, 920 P.2d 550 (1996).

Petitioner filed a petition for post-conviction relief in 1996, which the court denied. This court again affirmed without opinion, and the Supreme Court denied review. White v. Thompson , 157 Or.App. 723, 972 P.2d 1231 (1998), rev. den. , 328 Or. 293, 977 P.2d 1174 (1999). Thereafter, petitioner sought habeas corpus relief in federal district court, arguing that his post-conviction counsel had rendered constitutionally ineffective assistance by, among other things, failing to adequately object to the trial court's 800-month sentence on the ground that it exceeded state constitutional limitations on sentences for a juvenile. In 2001, the district court dismissed the petition on the ground that petitioner "failed to fairly present" that claim "to the Oregon Court of Appeals or the Oregon Supreme Court when [petitioner] appealed the denial of his motion for post-conviction relief." That is, the district court ruled that petitioner had procedurally defaulted on that claim by not raising it in state post-conviction proceedings.

In the years that followed, petitioner also litigated in state and federal court with regard to his life sentence for aggravated murder—in particular, his parole eligibility on that sentence. At the time that petitioner and his twin brother were sentenced for their crimes, the Board of Parole and Post-Prison Supervision did not have rules in place to address parole for juvenile aggravated murders. See generally Engweiler v. Board of Parole , 343 Or. 536, 175 P.3d 408 (2007) (discussing the complicated history of the law as it applied to juveniles who were convicted of aggravated murder). The board eventually adopted so-called "juvenile aggravated murderer (JAM) rules" and, in 1999, established a prison term of "life" with a parole eligibility hearing after 40 years for petitioner and his brother. In 2010 and 2011, the federal district court and the Oregon Supreme Court invalidated those JAM rules in different respects. See White v. Belleque , Nos. 02-0630-TC, 02-1453-TC, 2010 WL 5625800 (D. Or. Oct. 21, 2010) ; State ex rel Engweiler v. Felton , 350 Or. 592, 260 P.3d 448 (2011).

Then, in 2012, two events shaped the filing of the amended petition that is the subject of this appeal. One, the board held a hearing for petitioner and his brother in the wake of the federal and state decisions invalidating the JAM rules, and it set prison terms of 288 months on their aggravated murder convictions. And two, the United States Supreme Court decided Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), 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. Miller had drawn on the reasoning in Graham v. Florida , 560 U.S. 48, 82, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), in which the Court held that the Eighth Amendment prohibits the imposition of a life sentence without parole on a juvenile offender for crimes other than homicide.

Petitioner filed his amended petition after Miller , alleging various claims based on the lawfulness of his sentences.⁴ As relevant to his appeal, petitioner's amended petition alleged a claim that he was denied due process because his 800-month sentence was vertically disproportionate, in that it was longer than the 288-month prison term he would serve for aggravated murder, and was unconstitutional because it amounted to a de facto life sentence for a juvenile; a claim that trial counsel was inadequate by, among other things, failing to object to the 800-month sentence as vertically disproportionate; and claims that previous post-conviction counsel, including appellate post-conviction counsel, were inadequate in failing to raise and preserve claims regarding the proportionality of his 800-month sentence.

In response, the state moved for summary judgment, arguing, as a threshold matter, that all the claims were untimely and successive under ORS 138.510(3) and ORS 138.550(3), respectively. Petitioner acknowledged that his amended petition was successive because he had previously initiated post-conviction proceedings,⁵ but he argued that the claims were not barred because the grounds for relief in his amended petition could not reasonably have been asserted in a previous or timely petition, thereby bringing them within the escape clauses of those procedural bars. The...