Petitioner appeals a judgment dismissing his post-conviction petition on the ground that his claims were barred by the applicable 120-day statute of limitations. He contends that he was excused from filing a timely petition because his post-conviction claims could not reasonably have been raised within 120 days of his conviction. We agree with the trial court that the petition was untimely. We therefore affirm.
In July of 1992, petitioner was indicted on three counts of using a child in a display of sexually explicit conduct and five counts of sexual abuse in the first degree. Two of the sexual abuse counts were based on acts committed in 1976 and 1981. At those times, the relevant statute required the state to prosecute within three years. ORS 131.125(2) (1981). The state did not prosecute petitioner within that time. In 1991, the legislature extended the time period for prosecuting certain offenses, including first-degree sexual abuse, where the victim was under the age of 18 at the time of the crime’s commission. Or Laws 1991, ch 388, § 1. Under the amendment, those crimes may be prosecuted anytime before the victim turns 24 years old or within six years after the offense is reported to a law enforcement agency. Id. In addition, the legislature provided that the extended time for prosecution applies retroactively. Id. at § 2. Relying on the retroactive application of the amendment, the state indicted petitioner in 1992 for the 1981 and 1976 sexual abuse crimes.
Petitioner pleaded guilty to all counts of the indictment, including the revived charges of sexual abuse. He did not challenge the constitutionality of the extended time for prosecuting the sexual abuse charges. Nor did he file a direct appeal. His convictions became final when the judgment was entered on November 18,1992. Subsequently, on August 15, 1996, the Supreme Court declared that retroactive application of the extended statute of limitations violated the
Ex Post Facto
Clause of Article I, section 21, of the Oregon Constitution.
State v. Cookman,
At the time of petitioner’s conviction, ORS 138.510(2) (1991) required a petition for post-conviction relief to be filed within 120 days of the entry of the judgment of conviction unless the grounds for relief “could not reasonably have been raised” within that time period.
See generally Bartz v. State of Oregon,
On appeal, the parties renew the arguments they made below. Petitioner contends that, until
Cookman
was authoritatively resolved, he could not reasonably have anticipated the ground on which his post-conviction claims were
predicated
— i.e., the unconstitutionality of the statute extending the time in which the sexual abuse crimes
We agree with the state that whether an issue reasonably could be anticipated and raised does not depend — at least not in a
per se
way — on whether the issue has been definitively resolved by the courts. Two of our prior
cases, in fact, necessarily stand for that proposition. In both
Sumner v. Choate,
Petitioner attempts to distinguish
Sumner
and
Mora.
He argues that our decision in
Sumner
turned on the fact that the petitioner in fact
had
raised his claim before we decided
Moeller
and that he therefore was in no position to argue that the issue could not reasonably have been raised in a timely petition for post-conviction review.
Sumner,
Petitioner, nevertheless, urges that a late petition is
per se
permissible when , a court, after the time for filing a petition has passed, declares a statute on which a conviction depends to be unconstitutional. In support of that argument, petitioner relies on a portion of the Supreme Court’s decision in
Bartz
in
“In general, those examples involve information that did not exist or was not reasonably available to a defendant within the 120-day period following conviction. The legislative history thus suggests that the exception in ORS 138.510(2) is meant to be construed narrowly.”
Bartz,
Contrary to petitioner’s position, the court in Bartz neither ratified the witness’s specific examples nor reached the question presented in this case. The court merely cited the witness’s testimony in support of a conclusion that the exception for filing a late petition is to be narrowly construed and limited to “extraordinary circumstances.” 4 Id. at 358-59. Beyond that, Bartz did not purport to decide a question that the circumstances before it did not involve — that is, whether and under what circumstances a court’s later invalidation of a statute on which a conviction depends is a ground for a late post-conviction filing. We therefore reject petitioner’s argument that Bartz compels a conclusion that his petition was per se timely in this circumstance.
The question remains whether petitioner’s specific claims in this case could have been raised in a timely petition. In that regard, Sumner and Mora provide only limited guidance. The discussions in those cases addressed the specific claim presented by the petition (the validity of the particular sentencing guidelines factor) and did not examine more generally the meaning of the statute’s reference to “grounds for relief asserted which could not reasonably have been raised.” ORS 138.510(2).
The standard, however, is a familiar one in the area of Oregon post-conviction remedies, and there is significant guidance in our settled jurisprudence. ORS 138.550(2) has long permitted a petitioner who filed a direct appeal from his or her conviction to base a post-conviction petition on claims that “could not reasonably have been asserted” on direct appeal. The same standard implicitly applies to petitioners who did not pursue a direct appeal; they, too, may assert only claims that they could not have reasonably raised on direct appeal if they had filed one.
North v. Cupp,
“ ‘The most common illustration is where the objection could conceivably have been made but could not reasonably have been expected. Examples are where the right subsequently sought to be asserted was not generally recognized to be in existence at the time of trial; where counsel was excusably unaware of facts which wouldhave disclosed a basis for the assertion of the right; and where duress or coercion prevented assertion of the right.’ ”
Id.
at 357
(quoting North,
Consequently, when a new constitutional principle has been articulated between the time of a petitioner’s direct appeal and the post-conviction proceeding, a claim based on the new constitutional principle will be considered in the post-conviction proceeding even though it was not raised at trial or on appeal.
See, e.g., Twitty v. Maass,
We adhere to those general guidelines in determining whether, under ORS 138.510(2), a claim raised in a late post-conviction petition reasonably could not have been raised timely. In this case, petitioner’s claims do not excuse his late petition. Petitioner is correct that he could not have been aware of our or the Supreme Court’s decisions in Cook-man within the 120-day limit for seeking post-conviction relief of his convictions. 5 But the constitutional principle at stake (ex post facto prohibition against retroactive legislation) was not novel or nascent. Nor was there anything unprecedented or surprising in the idea that an ex post facto challenge might lie against a statute reviving and permitting prosecution of cases that under the prior law were no longer subject to prosecution. To be sure, the answer to that challenge was open to debate, and petitioner had no assurance that his challenge, if raised, would prevail. But, as we have emphasized, the test is not whether the law is settled; it is only whether the issue was reasonable to anticipate and raise. Here, it was.
Finally petitioner argues that his late petition should be excused because he was not
personally
aware that the extended statute of limitations might be unconstitutional. In his petition, petitioner alleged that he was never told that he might be able to challenge the state’s ability to prosecute him on the sexual abuse charges, that he did not in fact know of a possible challenge to the prosecution, and that he was incarcerated and had no counsel from the time of his sentencing until 1997, when he obtained representation in connection with his parole violation. The attorney representing him on that matter discovered and advised petitioner of his possible challenge under
Cookman.
Petitioner evidently believes that his failure to seek legal advice or representation in connection with a possible post-conviction petition, and the fortuity of his later obtaining counsel on an unrelated matter who identified a possible basis for a post-conviction claim, means that he should be held to a different standard. The statute provides no basis for petitioner’s assertion, and we decline to
adopt a standard of actual knowledge for a person who
Affirmed.
Notes
In his post-conviction petition, petitioner sought to set aside his two sexual abuse convictions on two grounds: (1) that his guilty pleas were not knowing and voluntary because he did not know that he could successfully defend against the charges by challenging the constitutionality of retroactive application of the extended statute of limitations; and (2) his counsel was ineffective for not anticipating and raising a challenge to those prosecutions on that same ground. Both claims were predicated on the decision in Cookman.
In
Mora,
the petitioners actually filed petitions for habeas corpus relief. We treated them as mislabeled petitions for post-conviction relief.
The relevant excerpt reads:
“A representative of the Oregon Criminal Defense Lawyers Association testified to the Subcommittee on Civil and Judicial Administration that he would support the 120-day time limitation if an exception were made where ‘extraordinary circumstances’ were shown. As examples, he mentioned convictions procured by collusion between a prosecutor and a defense lawyer, but coming to light after the limitation period, and situations in which the statute under which the conviction was obtained is later declared facially unconstitutional. Minutes, House Committee on the Judiciary, Subcommittee on Civil and Judicial Administration, June 12,1989, pp 13-14.”
Bartz,
It is worth noting, moreover, that the Supreme Court generally has eschewed giving much, if any, weight to the testimony of a single witness — and certainly one that opposes or only conditionally supports legislation — in interpreting a statute’s meaning.
See generally State v. Guzek,
We issued our decision holding unconstitutional the retroactive application of the extended limitation period on April 23, 1994.
State v. Cookman,