Johnson v. BLACKETTER , 221 Or. App. 407 ( 2008 )

190 P.3d 440 (2008) 221 Or. App. 407

Richard S. JOHNSON, Petitioner-Appellant,
v.
Sharon BLACKETTER, Superintendent, Eastern Oregon Correctional Institution, Defendant-Respondent.

CV060977; A136200.

Court of Appeals of Oregon.

Submitted May 19, 2008. Decided July 30, 2008.

James N. Varner, Dundee, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Pamela J. Walsh, Assistant Attorney General, filed the brief for respondent.

Before BREWER, Chief Judge, and SCHUMAN, Judge, and RIGGS, Senior Judge.

BREWER, C.J.

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

The relevant facts are not in dispute. In November 2004, based on a plea agreement, petitioner was convicted of three counts of sexual abuse in the second degree. At petitioner's sentencing on November 19, 2004, the court, without impaneling a jury, imposed consecutive prison sentences on all three counts, resulting in a total prison sentence of 90 months. Petitioner's trial attorney did not object to the court's actions.^[1] In November 2005, petitioner's convictions were affirmed on direct appeal. He then filed this action for post-conviction relief, alleging, among other things, that his trial counsel was constitutionally inadequate for failing to object to the consecutive sentences on the ground that the state did not prove the factors supporting the imposition of consecutive sentences beyond a reasonable doubt to a jury, 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). In a judgment entered in June 2007, the post-conviction court rejected all of petitioner's claims and denied the petition.

Petitioner argues that his criminal trial counsel's failure to object to the consecutive sentences on Apprendi and Blakely grounds amounted to constitutionally inadequate assistance. By the time of petitioner's sentencing, the Court in Apprendi had 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. Blakely was decided in June 2004, five months before petitioner was sentenced. In Blakely, the Court further held that the rule in Apprendi precluded judicial factfinding under a sentencing guidelines scheme involving departure sentences based on findings of fact. Blakely, 542 U.S. at 301, 124 S. Ct. 2531.^[2]

In State v. Tanner, 210 Or.App. 70, 150 P.3d 31 (2006), vac'd and rem'd, 343 Or. 554, 173 P.3d 831 (2007), we confronted for the first time the preserved issue whether the Blakely holding applies to findings made pursuant to ORS 137.123 in support of consecutive sentences. In a closely divided en banc decision, we concluded that the Blakely holding does not apply to judicial determinations supporting consecutive sentences. In State v. Ice, 343 Or. 248, 170 P.3d 1049 (2007), cert. granted, ___ U.S. ___, 128 S. Ct. 1657, 170 L. Ed. 2d 353 (2008), the Oregon Supreme Court effectively overruled Tanner. In Ice, the court held that, to comply with the Sixth Amendment as interpreted in Blakely, a trial court cannot impose consecutive sentences under ORS 137.123(5) unless the facts required under that statute are submitted to a jury and proved beyond a reasonable doubt.

In Chase v. Blacketter, 221 Or.App. 92, 188 P.3d 427 (2008), the post-conviction petitioner argued that his criminal trial counsel was inadequate for failing to object, at a sentencing proceeding held on October 7, 2004, to the trial court's imposition of consecutive sentences "on Apprendi and Blakely grounds." 221 Or.App. at 101, 188 P.3d 427. In analyzing that issue, we relied in part on this court's decision in State v. Fuerte-Coria, 196 Or.App. 170, 100 P.3d 773 (2004), rev. den., 338 Or. 16, 107 P.3d 26 (2005). In the latter case, which we decided on November 10, 2004-nine days before petitioner in this case was sentenced-we declined to review the defendant's unpreserved Blakely challenge to a sentencing court's imposition of consecutive sentences. As pertinent here, we observed:

"Neither [Apprendi nor Blakely] involved consecutive sentencing. Indeed, defendant identifies no reported decision in which any court has extended Apprendi's or Blakely's reasoning to invalidate a consecutive sentence. To the contrary, as the state points out, several courts have rejected the proposition that defendant now urges. In all events, given that Apprendi and Blakely addressed the imposition of single sentences that exceeded the statutorily prescribed maximum for particular crimes, and because making a sentence for one crime consecutive to a sentence for a different crime does not implicate the ``statutory maximum' for either crime in any obvious way, any extension of Apprendi and Blakely to consecutive sentencing is, at best, reasonably in dispute."

Fuerte-Coria, 196 Or.App. at 174, 100 P.3d 773 (emphasis added; internal citations and omitted). We concluded in Chase that, given the state of the law at the relevant time, the petitioner's post-conviction trial counsel was not inadequate. See also Krieg v. Belleque, 221 Or.App. 36, 188 P.3d 413 (2008) (ascertaining state of the law at time of the petitioner's post-conviction criminal sentencing and appeal and concluding that criminal trial and appellate counsel were not deficient).

Our reasoning in Chase and Krieg is controlling here. The fact that Fuerte-Coria— which posed the unpreserved issue of whether Blakely applies to the imposition of consecutive sentences—was decided before petitioner here was sentenced, but after the petitioner in Chase was sentenced, is of no consequence to the analysis. As was the circumstance in Fuerte-Coria, petitioner does not cite a single appellate judicial decision in the nation that, as of November 19, 2004, had held that the rule of Blakely proscribed judicial factfinding with respect to the imposition of consecutive sentences. On the other hand, the courts that had considered the issue uniformly had held that Apprendi and Blakely do not apply in such circumstances. See, e.g., U.S. v. Chorin, 322 F.3d 274, 278-79 (3d Cir.), cert. den. sub. nom., Caden v. U.S., 540 U.S. 857, 124 S. Ct. 158, 157 L. Ed. 2d 104 (2003); U.S. v. Buckland, 289 F.3d 558, 570-71 (9th Cir.), cert. den., 535 U.S. 1105, 122 S. Ct. 2314, 152 L. Ed. 2d 1067 (2002); U.S. v. White, 240 F.3d 127, 136 (2d Cir.2001); Wright v. State, 46 P.3d 395, 398 (Alaska Ct.App.2002); People v. Allen, 78 P.3d 751 (Colo.Ct.App. 2001); People v. Wagener, 196 Ill. 2d 269, 256 Ill. Dec. 550, 752 N.E.2d 430, cert. den., 534 U.S. 1011, 122 S. Ct. 498, 151 L. Ed. 2d 408 (2001); Cowens v. State, 817 N.E.2d 255, 255 (Ind.Ct.App.2004); State v. Jacobs, 644 N.W.2d 695, 698-99 (Iowa 2001); State v. Bramlett, 273 Kan. 67, 41 P.3d 796 (2002); Com. v. Lepper, 60 Mass App Ct 36, 798 N.E.2d 1030 (2003); State v. Higgins, 149 N.H. 290, 821 A.2d 964 (2003).

Under those circumstances, petitioner's trial counsel did not render a deficient performance by reason of failing to raise the issue at petitioner's sentencing. Cf. Miller v. Lampert, 340 Or. 1, 13-17, 125 P.3d 1260 (2006) (where the petitioner's enhanced dangerous offender sentence had been imposed in August 1998, criminal defense counsel was not unconstitutionally inadequate in failing to anticipate Apprendi, based on the then-existing state of the law); Peralta-Basilio v. Hill, 203 Or.App. 449, 126 P.3d 1 (2005), rev. den., 340 Or. 359, 132 P.3d 1056 (2006) (where the petitioner's upward departure sentence was imposed in 2002, after Apprendi and before Blakely, criminal defense counsel was not unconstitutionally inadequate in failing to anticipate Blakely).

Affirmed.

NOTES

[1] The sentencing court did not state on the record its reasons for imposing consecutive sentences. However, it appears likely that the court imposed consecutive sentences under ORS 137.123(2), which provides that, "[i]f a defendant is simultaneously sentenced for criminal offenses that do not arise from the same continuous and uninterrupted course of conduct * * *, the court may impose a sentence concurrent with or consecutive to the other sentence or sentences."

[2] In State v. Dilts, 337 Or. 645, 103 P.3d 95 (2004), decided in December 2004, the court held that Blakely precluded judicial factfinding in support of upward departure sentences under Oregon's sentencing guidelines.