Argued and Submitted May 15, 2014.
11C11800. Marion County Circuit Court. Thomas M. Hart, Judge.
Ryan T. O'Connor argued the cause and filed the briefs for appellant.
Ryan Kahn, Senior Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jeremy C. Rice, Assistant Attorney General.
Before Sercombe, Presiding Judge, and Tookey, Judge, and Schuman, Senior Judge.
[268 Or.App. 64] SERCOMBE, P. J.
Petitioner killed his parents in 1998 when he was 17 years old. Based on a guilty plea, he was convicted of two counts of murder and sentenced to consecutive life sentences with mandatory minimum prison terms of 25 years. In 2011, he filed a successive petition for post-conviction relief under ORS 138.510 and ORS 138.550, asserting that his sentence for murder was " unconstitutionally disproportionate to the penalty for the greater-included offense of aggravated murder under Article I, section 16[,] of the Oregon Constitution."  Ultimately, the post-conviction court denied his petition and dismissed the case with prejudice. Petitioner appeals, contending that his " late and successive petition" was appropriate because the grounds for relief asserted therein " were precluded by controlling Oregon Supreme Court statutory interpretation until that court overruled itself months prior to the filing of the successive petition[.]" Furthermore, assuming that the petition was properly filed, petitioner argues that the " sentence for intentional murder under ORS 163.115(1)(a) (1997) [is unconstitutionally] disproportionate [268 Or.App. 65] to a sentence for aggravated murder under ORS 163.105 (1997)[.]"  We conclude that the sentences imposed on the two murder convictions are not unconstitutionally disproportionate under Article I, section 16, and affirm the post-conviction court's judgment on that basis.
As noted, in the underlying criminal case, petitioner was convicted of two counts of murder. In his plea petition, he acknowledged that the maximum imprisonment for each count of murder was life with a 25-year-minimum and, at sentencing, the trial court imposed consecutive life sentences with minimum terms of imprisonment of 25 years. See ORS 163.115(5) (1997); ORS 137.707(4) (1997); see also State v. Haynes, 168 Or.App. 565, 7 P.3d 623, rev den, 331 Or. 283, 18 P.3d 1101 (2000) (discussing ameliorative amendment to ORS 163.115 to provide for parole after completion of minimum term of imprisonment). The trial court's judgment was affirmed on direct appeal. State v. Sexton, 169 Or.App. 306, 9 P.3d 157, rev den, 331 Or. 244, 18 P.3d 1100 (2000). Petitioner then sought post-conviction relief. The post-conviction court's denial of relief was affirmed on appeal. See Sexton v. Lawhead, 201 Or.App. 299, 120 P.3d 29, rev den, 339 Or. 475, 124 P.3d 1248 (2005).
Then, in 2011, petitioner again sought post-conviction relief. In his petition, he asserted that his petition was properly filed under ORS 138.510(3) and ORS 138.550(3) because it asserted grounds for relief that could not reasonably have been raised on direct appeal or in his earlier petition for post-conviction relief. He further contended that his sentence was unconstitutionally disproportionate because,
" [u]nder the penalty scheme for murder, a defendant, such as Petitioner, who was sentenced simultaneously to two or more consecutive 25-year minimum sentences for the crime of murder committed in 1998 must serve the entire aggregate sum of the consecutive minimum terms (50 years) before being eligible for parole or release on post-prison supervision."
[268 Or.App. 66] However, based on the Oregon Supreme Court's decisions in Severy/Wilson v. Board of Parole, 349 Or. 461, 245 P.3d 119 (2010), and Janowski/Fleming v. Board of Parole, 349 Or. 432, 245 P.3d 1270 (2010), he asserted that,
" [u]nder the penalty scheme for aggravated murder, a defendant who was sentenced simultaneously to two or more consecutive 30-year minimum sentences for the crime of aggravated murder committed in 1998 is entitled to parole eligibility and the elimination ...