The issue in this case is whether the federal constitutional right announced in
Apprendi v. New
Jersey,
We draw the undisputed facts from the briefs filed in this court and in the Court of Appeals, and from the record of the post-conviction proceedings in the trial court. In September 1996, petitioner was charged by indictment with two counts of robbery in the first degree, ORS 164.415, one count of kidnapping in the first degree, ORS 163.235, one count of assault in the fourth degree, ORS 163.160 (1995), one count of robbery in the third degree, ORS 164.395, one count of menacing, ORS 163.190, and two counts of harassment, ORS 166.065 (1995). The indictment set out the allegations supporting each of those charges. A jury convicted petitioner of kidnapping in the first degree and assault in the fourth degree. The maximum sentence that petitioner could have received for the kidnapping conviction was 20 years’ imprisonment. See ORS 161.605(1) (20-year maximum sentence for Class A felony). For the assault conviction, the maximum sentence was one-year imprisonment. See ORS 161.545 (one-year maximum sentence for misdemeanor).
At sentencing, the trial court reviewed petitioner’s criminal history and concluded that it would be appropriate to sentence petitioner as a “dangerous offender” under ORS 161.725(1). That statute 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 *382 a severe personality disorder indicating a propensity toward crimes that seriously endanger the life or safety of another.”
The trial court acknowledged that determining whether petitioner could be sentenced as a dangerous offender involved resolving some questions of fact. The court nevertheless sentenced petitioner as a dangerous offender and imposed the maximum term of imprisonment, 30 years, provided in ORS 161.725(1).
Petitioner unsuccessfully appealed his conviction and dangerous offender sentence.
State v. Page,
In June 2000, the United States Supreme Court decided
Apprendi.
In that case, the Supreme Court held, based on the Sixth and Fourteenth Amendments to the United States Constitution, 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.”
Apprendi,
The trial court denied petitioner post-conviction relief. In a letter opinion, the court stated that it found “no merit in petitioner’s complaints about his trial counsel. None of petitioner’s other claims have merit either, and are adequately addressed in Defendant’s Trial Memorandum.” Petitioner appealed, arguing that
Apprendi
entitled him to post-conviction relief. The Court of Appeals affirmed per curiam, based on its previous decision in
Teague v. Palmateer,
184 Or
*383
App 577,
Petitioner argues here that, pursuant to this court’s decision in
State v. Fair,
The state’s response is threefold. First, the state contends that ORS 138.550(2) bars petitioner’s challenge to his sentence,
see Palmer v. State of Oregon,
The state asserts that, under the Supreme Court’s decision in
Teague v. Lane,
Because the Court of Appeals based its decision in this case on its retroactivity analysis in
Teague,
we begin our analysis with a brief discussion of that case. In
Teague,
the Court of Appeals examined en banc whether
Apprendi
should apply retroactively to post-conviction proceedings in Oregon.
In Fair, this court addressed whether the rule that it had announced in a recently decided case would apply retroactively.
Based on its review of the case law, the Fair court then stated:
“We may draw two conclusions from our recent decisions on retroactivity. First, we are free to choose the degree of retroactivity or prospectivity which we believe appropriate to the particular rule under consideration, so long as we give federal constitutional rights at least as broad a scope as the United States Supreme Court requires. Secondly, we have tended to restrict the retroactive application of newly-announced rights, giving them only the application which the Supreme Court has adopted as a minimum. In the present case since we are dealing with a new principle of law which rests entirely on our own Constitution the determination of retroactivity or prospectivity is for us alone. The decisions of the United States Supreme Court are not binding on us, but we may look to those cases for guidance.”
Id.
at 387-88. Based on that discussion from
Fair,
and the Supreme Court’s statement in
Johnson v. New Jersey,
*385 “The federal Supremacy Clause does not require states to adhere to federal retroactivity principles in determining whether to grant post-conviction relief to Oregon prisoners who rely on newly announced federal constitutional pronouncements. Rather, states are free to apply new federal constitutional pronouncements to a broader range of cases — -that is, to give those pronouncements greater retroactive application — than federal law requires of federal courts.”
As the Supreme Court has made clear, both in
Oregon v. Hass,
In
Hass,
the Supreme Court reversed a decision in which this court had applied the
Miranda
rule more restrictively than the Supreme Court had determined was appropriate in
Harris v. New York,
The Supreme Court later reaffirmed
Hass
in
Arkansas v. Sullivan,
*386 “The Arkansas Supreme Court’s alternative holding, that it may interpret the United States Constitution to provide greater protection than this Court’s own federal constitutional precedents provide is foreclosed by [Hass]. There, we observed that the Oregon Supreme Court’s statement that it could interpret the Fourth Amendment more restrictively than interpreted by the United States Supreme Court was not the law and surely must have been inadvertent error. We reiterated in Hass that while a State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards, it may not impose such greater restrictions as a matter of federal constitutional law when this Court specifically refrains from imposing them.”
Sullivan,
In light of
Hass
and
Sullivan,
it is clear that, when interpreting the federal constitution or applying Supreme Court rulings that are based on its interpretation of the federal constitution, we must comply with what the Supreme Court has stated.
See also State v. Flores,
With respect to the retroactive application of federal constitutional decisions, the Supreme Court further explained in American Trucking that
“[t]he determination whether a constitutional decision of this Court is retroactive — that is, whether this decision applies to conduct or events that occurred before the date of the decision — is a matter of federal law. When questions of state law are at issue, state courts generally have the authority to determine the retroactivity of their own decisions. The retroactive applicability of a constitutional decision of this Court, however, is every bit as much of a federal question as what particular federal constitutional provisions themselves mean, what they guarantee, and whether they have been denied. In order to ensure the uniform application of decisions construing constitutional requirements and to prevent States from denying or curtailing federally protected rights, we have consistently required that state courts adhere to our retroactivity decisions.”
*387
In Fair, this court thus correctly stated that it was free to determine the degree to which a new rule of Oregon constitutional law should be applied retroactively. However, the court’s statement that it also was free to determine the degree to which a new rule of federal constitutional law should be applied retroactively was incorrect. Although that latter conclusion was not necessary to the holding in Fair, we nevertheless disavow it.
The Supreme Court based the rule announced in
Apprendi
— 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,”
Apprendi,
The Supreme Court’s decision in
Lane
sets out the applicable rule. In that case, the petitioner contended, among other things, that the Supreme Court should adopt a rule requiring that petit juries be composed of a fair cross-section of the community, and that, in so doing, the Court also should apply that new rule retroactively to his federal habeas corpus case.
“ ‘Habeas corpus always has been a collateral remedy, providing an avenue for upsetting judgments that have become otherwise final. It is not designed as a substitute for direct review. The interest in leaving concluded litigation in a state of repose, that is, reducing the controversy to a final judgment not subject to further judicial revision, may quite legitimately be found by those responsible for defining the scope of the writ to outweigh in some, many, or most instances the competing interest in readjudicating convictions according to all legal standards in effect when a habeas petition is filed.’ ”
Id.
at 306
(quoting Mackay,
“First, a new rule should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe. Second, a new rule should be applied retroactively if it requires the observance of those procedures that * * * are implicit in the concept of ordered liberty.”
Id.
at 307
(quoting Mackay,
Based on Justice Harlan’s reasoning, the Supreme Court agreed in Lane that the “[application of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system.” Id. at 309. “Without finality,” the Court observed, “the criminal law is deprived of much of its deterrent effect.” Id. The Supreme *389 Court therefore held that, “[u]nless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” Id. at 310. The Supreme Court then clarified further that it understood Justice Harlan’s suggested second exception “to be reserved for watershed rules of criminal procedure,” i.e., “those procedures essential to the substance of a full hearing.” Id. at 311. The Court noted that Justice Harlan had identified “the right to counsel at trial!,]” which is “a necessary condition precedent to any conviction!,]” as the type of “bedrock procedural element! ] that must be found to vitiate the fairness of a particular conviction.” Id. at 311-12.
Based on the foregoing, we can apply Apprendi retroactively to a post-conviction relief proceeding in Oregon only if we conclude that it falls within one of Justice Harlan’s exceptions. The first exception does not apply to this case. The second, however, requires us to determine whether Apprendi is a “watershed” rule of criminal procedure.
For the following reasons, we agree with the Court of Appeals that Apprendi did not set out a watershed rule of criminal procedure. In Lane, the Supreme Court “limit[ed] the scope of the second exception to those new procedures without which the likelihood of an accurate conviction is seriously diminished.” Id. at 313. The Court explained further 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. (emphasis added). Because the petitioner in Lane sought federal habeas corpus relief, a remedy that is available only on collateral review, the Supreme Court could apply the rule that he advocated to his case only if it concluded that the rule satisfied one of the two exceptions to its new rule of retroactivity. The Court concluded that a rule requiring the petit jury to be composed of a fair cross-section of the community did not meet either exception. It explained that such a rule is not a watershed rule of criminal procedure because “the absence of a fair cross section on the jury venire does not undermine the fundamental fairness that must underlie a conviction or seriously diminish the likelihood of obtaining an accurate conviction!.]” Id. at 315.
*390 From the foregoing, it is clear that the Court thought that a “watershed” rule of criminal procedure is one that is fundamentally necessary to ensure that a criminal defendant is not wrongly convicted. The rule announced in. Apprendi, on the other hand, is one that is concerned with a criminal defendant’s sentence. Its purpose is to ensure that, if a criminal defendant is susceptible to being sentenced to a term of incarceration that exceeds the prescribed statutory maximum term for a particular crime, other than the fact of a previous conviction, the facts supporting the criminal defendant’s sentence are submitted to a jury and proven beyond a reasonable doubt. The rule, by its terms, is not concerned with ensuring the accuracy of a criminal defendant’s conviction. For that reason, it is clear that Apprendi is not the sort of “watershed” rule of criminal procedure that either Justice Harlan or the Lane Court contemplated.
Although their decisions are not binding in this court,
see, e.g., Gillar v. Employment Div.,
We therefore conclude that Apprendi does not apply retroactively to Oregon post-conviction proceedings and, therefore, does not afford petitioner relief in this case.
*391 The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
Notes
We note also thatFai;- is of limited applicability to both Teague and this case because, in Fair, the court was determining whether to apply state law retroactively.
Because petitioner relies solely on the federal rule announced in Apprendi, we have no occasion to determine whether an equivalent rule exists under the Oregon Constitution.
See United States v. Swinton,