Petitioner raises two issues in this post-conviction proceeding. The first is whether
In January 1998, petitioner entered a high school, grabbed a 16-year-old girl by the arm, reached up her skirt, and touched her vagina. The victim broke away, and petitioner again grabbed her and reached up her skirt. After the victim broke away a second time, petitioner blocked the door to prevent her from escaping. The state charged petitioner with one count of first-degree unlawful sexual penetration, ORS 163.411; one count of first-degree sex abuse, ORS 163.427; two counts of first-degree burglary, ORS 164.225; and one count of attempted first-degree rape, ORS 163.375. A jury convicted petitioner of all the charges except first-degree unlawful sexual penetration.
The trial court held a sentencing hearing on August 12, 1998. At that hearing, the state argued that the court should sentence petitioner as a dangerous offender because, among other things, he had committed a Class A felony and was suffering “from a severe personality disorder indicating a propensity toward crimes that seriously endanger the life or safety of another.” See ORS 161.725(1) (stating criteria for dangerous offender sentence). 1 If imposed, a dangerous offender sentence would exceed the maximum sentence that the trial court otherwise could have imposed on petitioner. See ORS 161.725(1) (authorizing maximum indeterminate sentence of 30 years for dangerous offenders); ORS 161.737(1) and (2) (authorizing maximum determinate sentence equal to twice presumptive sentence for dangerous offenders).
In arguing that the court should sentence petitioner as a dangerous offender, the state relied primarily on the presentence investigation (PSI) report. The PSI revealed that petitioner had 10 prior convictions, including a robbery conviction, four prior convictions for exposing himself to women, and a conviction for battery in which, similarly to this case, he had grabbed a woman while exposing himself. The state also relied on a psychological evaluation, which concluded that petitioner is “a seriously character-disordered individual who is not amendable to community-based sex offender treatment and who poses a substantial threat to the safety and welfare of the community relative to commission of further sex crimes.”
At the sentencing hearing, petitioner did not challenge the trial court’s authority to sentence him as a dangerous offender, he did not contest the accuracy of his criminal history set out in the PSI, and he did not seek to cross-examine the psychologist on whose report the state relied. Defense counsel explained that he had been present during the psychological examination, that he had reviewed the psychologist’s report, and that he did not “think there’s much to be gained by having him present today.” The only evidence that defense counsel offered at the sentencing hearing was an unsworn statement from a person who had worked with petitioner at Good Samaritan Ministries. She stated that, in her opinion, “if [petitioner] were to have a focused, intensive, concise program, he could be rehabilitated.” 2
Defense counsel acknowledged that the trial court could sentence petitioner as a dangerous offender but asked the court to
Relying on the PSI and the psychological evaluation that the state had submitted, the trial court found that petitioner was a dangerous offender. The court reasoned:
“[Petitioner’s] situation is one where I think the [c]ourt would be, quite frankly, really not living up to its obligation as one of the linchpins of an ordered society to say anything other than that he certainly fits the criteria for dangerous offender sentencing. You just have to take [the psychological] reports and evaluations and just drop them in the dust bin to say otherwise.”
Pursuant to the dangerous offender statute, the trial court imposed, on petitioner’s two burglary convictions, concurrent 96-month determinate sentences and concurrent 30-year indeterminate sentences. The court imposed guidelines sentences on petitioner’s other convictions and ruled that those sentences would rim concurrently with the dangerous offender sentences. Petitioner did not appeal from the resulting judgment.
Almost two years after petitioner’s conviction became final, the United States Supreme Court issued its decision in
Apprendi.
Relying on the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment, the Court 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.”
Shortly after the Court issued its decision in Apprendi, petitioner filed a petition for post-conviction relief. Relying on Apprendi, he alleged that the trial court had imposed his sentence in violation of the Sixth Amendment and the Due Process Clause because a jury had not found beyond a reasonable doubt that he was a dangerous offender. Alternatively, he alleged that his trial counsel had been constitutionally inadequate for failing to assert that he had a right under the federal constitution to have a jury make the requisite factual findings beyond a reasonable doubt. The post-conviction court denied both claims for relief.
Petitioner appealed, renewing the arguments that he had made to the post-conviction court. While petitioner’s case was on appeal, this court issued its decision in
Page v. Palmateer,
holding that
Apprendi
does not apply retroactively to judgments that became final before the decision in
Apprendi
issued. The Court of Appeals affirmed the post-conviction court’s judgment from the bench, presumably relying on this court’s decision in
Page
and its own decision in
Teague v. Palmateer,
We allowed review primarily to consider petitioner’s argument that our decision in Page is no longer good law in light of later developments in federal law. In analyzing that issue, we begin with a discussion of our decision in Page and a later United States Supreme Court decision addressing whether Apprendi applies retroactively. We then turn to petitioner’s arguments and explain why they do not persuade us that we should retreat from our holding in Page.
Procedurally, the facts in
Page
are identical to the facts here. In
Page,
as in this case, the trial court sentenced the petitioner as a dangerous offender pursuant to ORS 161.725(1) and imposed a 30-year indeterminate sentence.
As in this case, the petitioner in
Page
did not dispute that
Apprendi
had announced a new rule or that his conviction became final before the Court issued its decision in
Apprendi.
The only question before the court in
Page
was whether
Apprendi
applied retroactively.
Page,
Following the principles announced in
Teague v. Lane,
This court reached a different conclusion. It observed that the second
Teague
exception applies only to “ ‘watershed rules’ ” of criminal procedure, “ ‘without winch the likelihood of an accurate conviction is seriously diminished.’ ”
Page,
After this court’s decision in
Page,
the United States Supreme Court held in
Schriro v. Summerlin,
On review in this case, petitioner points out that the reasoning in
Schriro
does not apply to the reasonable doubt aspect of
Apprendi,
and he argues that the cases decided since
Apprendi
demonstrate that the reasoning in
Page
is unsound. With regard to
Schriro,
petitioner reasons that, although judicial factfinding may not “seriously diminish” the accuracy of a criminal proceeding, as the Court held in
Schriro,
the failure to apply a reasonable doubt standard does. Noting that the Court has described the reasonable doubt standard as “a prime instrument for reducing the risk of convictions resting on factual error,”
In re Winship,
With regard to
Page,
petitioner argues that this court’s distinction between new rules that affect a defendant’s conviction and new rules that affect a defendant’s sentence is not good law in light of
Blakely v. Washington,
Petitioner’s argument that the reasonable doubt aspect of
Apprendi
is a watershed rule is difficult to square with the retroactivity analysis in
Teague
and the Court’s consistent application of that analysis. As noted, a plurality of
the Court reasoned in
Teague
that, with two narrow exceptions, new federal constitutional rules do not apply retroactively.
The plurality envisioned that few rules would meet those criteria, stating:
“Because we operate from the premise that such procedures would be so central to an accurate determination of innocence or guilt, we believe it unlikely that many such components of basic due process have yet to emerge.”
Id.
at 313. Since
Teague,
the Court has not identified any new rule that would qualify as a watershed rule under the second exception, and it has pointed “only” to the right to counsel recognized in
Gideon v. Wainwright,
Consistently with that view of the second
Teague
exception, the Court has explained that the fact that a new rule advances the “accuracy and fairness of capital sentencing judgments” is not enough to make it a watershed rule.
Sawyer v. Smith,
The Court accordingly held in
Sawyer
that a new constitutional rule preventing prosecutors from diminishing a jury’s sense of responsibility for imposing the death penalty did not apply retroactively. The Court reasoned that a capital defendant always could have claimed that the prosecutor’s remarks rendered the proceeding fundamentally unfair.
See id.
at 243-44 (citing
Donnelly v. DeChristoforo,
Similarly, in
Beard,
the question was whether a new rule that states may not require juries in death-penalty cases to find mitigating circumstances unanimously came within the second
Teague
exception.
See
With that background in mind, we turn to the question whether the reasonable doubt aspect of Apprendi constitutes a watershed rule within the meaning of Teague. We begin by recognizing that, as petitioner argues, applying a reasonable doubt standard to sentencing factors decreases the risk of an erroneous enhanced sentence. However, to qualify as a “watershed” rule of criminal procedure under Teague, it is not enough that the rule enhances the accuracy of a criminal proceeding. Sawyer, 4Q1 US at 242. The rule “also must alter our understanding of the bedrock procedural elements essential to the fairness of the proceeding.” Id. (emphasis in original; internal quotation marks omitted).
We are not persuaded that Apprendis application of the reasonable doubt standard meets that test for two reasons. First, we do not believe that the rule announced in
Apprendi
is an “absolute prerequisite to fundamental fairness” because the extent to which the rule plays a role in criminal proceedings is dependent on the sentencing scheme that the legislature devises. As one court has put it, the rule “floats and flows with the tide of legislative pronouncements.”
United States v. Moss, 252
F3d 993, 1000 (8th Cir 2001). The Court’s recent decision in
United States v. Booker,
In
Booker,
the Court held that the federal sentencing guidelines were in conflict with the rule announced in
Apprendi
because, if a sentencing court made certain findings, the guidelines required the court to enhance a defendant’s sentence beyond that authorized by the jury verdict alone.
See
The Court’s chosen remedy in Booker allows federal sentencing courts to sentence defendants anywhere between the statutory minimum and maximum after taking the factors set out in the guidelines into consideration. Id. In doing so, sentencing courts, without running afoul of Apprendi, may make any finding by a preponderance of the evidence that they deem appropriate in determining the sentence. The Court explained:
“We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. * * * [W]hen a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.”
Id. at 750.
The Oregon legislature, without running afoul of the rule announced in
Apprendi,
could devise a similar system, creating wide sentencing ranges that it deemed appropriate and allowing sentencing courts to impose sentences within that range after making any findings that it deemed relevant — including whether a defendant is a “dangerous offender.”
See Apprendi,
A second consideration supports our conclusion. The Court has held in another context that the failure to submit an element of a criminal offense to a jury can be harmless error because, on the facts of a particular
Having concluded that the rule announced in
Apprendi
does not apply retroactively, we turn to petitioner’s alternative claim that his trial counsel was constitutionally inadequate in violation of Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution. We begin with Article I, section 11.
See Lichau v. Baldwin,
“ ‘First, we must determine whether petitioner demonstrated by a preponderance of the evidence that [his lawyer] failed to exercise reasonable professional skill and judgment. Second, if we conclude that petitioner met that burden, we further must determine whether he proved that counsel’s failure had a tendency to affect the result of his trial.’ ”
Burdge v. Palmateer,
On the first issue, petitioner contends that constitutionally adequate counsel would have foreseen the holding in Apprendi and argued, at petitioner’s sentencing hearing, that the federal constitution required a jury to find beyond a reasonable doubt that petitioner was a dangerous offender. 4 Petitioner acknowledges that the Court did not decide Apprendi until almost two years after his sentencing hearing. He argues, however, that three United States Supreme Court decisions foreshadowed the Court’s later holding in Apprendi. 5
This court has explained that, in reviewing whether counsel exercised reasonable professional skill and judgment, it must “ ‘make every effort to evaluate a lawyer’s conduct from the lawyer’s perspective at the time, without the distorting effects of hindsight.’ ”
Burdge,
Before petitioner’s sentencing hearing in August 1998, the Court twice had considered and rejected the argument that a sentencing factor constituted an “element” of the crime, which a jury had to find beyond a reasonable
Reaffirming its decision in
Patterson v. New York,
In the course of rejecting the petitioners’ argument, the Court observed that their argument “would have at least more superficial appeal if a finding of visible possession exposed them to greater or additional punishment” rather than a mandatory minimum sentence. Id. at 88. Although the Court’s recognition of that distinction appears to provide some support for petitioner’s inadequate assistance claim here, the Court’s later decision in Almendarez-Torres negated whatever support McMillan provided.
In
Almendarez-Torres,
a federal statute authorized sentencing courts to impose two-year sentences on deported aliens who returned illegally to the United States; it also authorized an enhanced sentence of up to 20 years if the court found by a preponderance of the evidence that the returning alien had a prior felony conviction.
See
The Court rejected the petitioner’s argument. Id. at 245. It reasoned that whether a sentencing factor triggers an increased maximum sentence or a mandatory-minimum sentence, which the Court had held constitutional in McMillan, is not dispositive because “the risk of unfairness to a particular defendant is no less, and may well be greater, when a mandatory minimum sentence, rather than a permissive maximum sentence, is at issue.” Id. Thus, the Court declined to “adopt a rule that any significant increase in a statutory maximum sentence would trigger a constitutional ‘elements’ requirement[,]” reasoning that “such a rule would seem anomalous in fight of existing case law[.]” Id. at 247.
Although later cases have recast
Almendarez-Torres
as establishing only a “prior conviction” exception to the rule in
Apprendi,
the decision in
Almendarez-Torres,
read on its own terms, stands for a far broader proposition: The Court held
in Almendarez-Torres
that, as a general rule, sentencing factors that enhance the statutory maximum sentence do not
constitute elements of an offense that the state must prove to a jury beyond a reasonable doubt.
6
Indeed, the dissent in
Almendarez-Torres
invited the majority to apply the constitutional rule that the Court later announced in Apprendi— an invitation that the Court declined.
See
Almendarez-Torres
was the controlling United States Supreme Court decision when the trial court imposed a dangerous offender sentence on petitioner. Measured against the law in effect at the time of petitioner’s sentencing hearing, the performance of petitioner’s trial counsel was constitutionally adequate. Counsel was not required to anticipate that two years later the United States Supreme Court would reverse course in
Apprendi,
interpret the Sixth Amendment and Due Process Clauses as the dissent had urged in
Almendarez-Torres,
and read its decision in
Almendarez-Torres
as establishing only a narrow exception to the new rule announced in
Apprendi.
Petitioner’s trial counsel did not fail to exercise reasonable professional skill and judgment.
See Burdge,
We turn finally to petitioner’s argument that his trial counsel was constitutionally inadequate under the Sixth Amendment. To prevail on that claim, petitioner must demonstrate that his trial counsel’s performance “fell below an objective standard of reasonableness * * * under prevailing professional norms” and that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland v. Washington,
Having considered petitioner’s arguments, we hold that Apprendi does not apply retroactively and that petitioner’s trial counsel’s performance did not fall below the minimum standard that Article I, section 11, and the Sixth Amendment require.
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
Notes
ORS 161.725(1) provides, in part:
“[T]he maximum term of an indeterminate sentence of imprisonment for a dangerous offender is 30 years, if the court finds that because of the dangerousness of the defendant an extended period of confined correctional treatment or custody is required for the protection of the public and if it further finds * * * that one or more of the following grounds exist:
“(a) The defendant is being sentenced for a Class A felony, and the court finds that the defendant is suffering from a severe personality disorder indicating a propensity toward crimes that seriously endanger the life or safety of another.”
It is unclear whether the witness was a licensed counselor, some other person qualified to offer an opinion on petitioner’s amenability to treatment, or a layperson.
The Court held in
Johnson
that, because the evidence of materiality was overwhelming, the trial court’s failure to submit that element of the crime of perjury to the jury was harmless error.
Petitioner does not contend that his trial counsel was constitutionally inadequate for failing to argue that Article I, section 11, of the Oregon Constitution required a jury to decide whether he was a dangerous offender.
See State v. Wedge,
Petitioner relies on a fourth case,
Jones v. United States,
The Court identified a five-factor test that it drew from
McMillan
and earlier cases to identify those few instances in which a sentencing factor would constitute an element of a crime.
See Almendarez-Torres,
Justice Scalia explained that, in his view, it was constitutionally impermissible for “a judge (rather than a jury) to determine by a mere preponderance of the evidence (rather than beyond a reasonable doubt) a fact that increases the maximum penalty to which a criminal defendant is subject.”
See Almendarez-Torres,