Frias v. Coursey , 229 Or. App. 716 ( 2009 )

215 P.3d 874 (2009) 229 Or. App. 716

Jeffrey John FRIAS, aka Jeffery John Frias, aka Jeff Frias, Petitioner-Appellant,
v.
Rick COURSEY, Superintendent, Eastern Oregon Correctional Institution, Defendant-Respondent.

CV081391; A140134.

Court of Appeals of Oregon.

Submitted on June 22, 2009. Decided July 15, 2009.

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

John R. Kroger, Attorney General, Erika L. Hadlock, Acting Solicitor General, and Denis M. Vannier, Assistant Attorney General, filed the brief for respondent.

Before WOLLHEIM, Presiding Judge, and BREWER, Chief Judge, and DEITS, Senior Judge.

PER CURIAM.

Petitioner was convicted of various sexual offenses and was sentenced to a total of 360 months in prison. In a petition for post-conviction relief, petitioner argued that his sentences, which included an upward departure sentence based on judicial factfinding, violated his right to a jury trial under the Sixth Amendment to the United States Constitution as set forth in 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 dismissed the petition as untimely and successive under ORS 138.550(3), and petitioner appeals.

On appeal, petitioner argues that the trial court erred in dismissing his petition because Blakely and Apprendi apply retroactively on collateral review. Petitioner concedes that the Oregon Supreme Court has previously held to the contrary. Miller v. Lampert, 340 Or. 1, 125 P.3d 1260 (2006) (adhering to its conclusion in Page v. Palmateer, 336 Or. 379, 84 P.3d 133 (2004), that Apprendi does not apply retroactively). Nonetheless, he contends that Miller was wrongly decided in light of the United States Supreme Court's decision in Danforth v. Minnesota, 552 U.S. ___, 128 S. Ct. 1029, 169 L. Ed. 2d 859 (2008). In petitioner's view, Danforth specifically calls into question the reasoning in Miller and Page. See Danforth, 128 S.Ct. at 1039 n. 14 (describing the decision in Page as "misguided"). Whatever the merits of petitioner's argument, it is properly addressed to the Oregon Supreme Court.

Affirmed.