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Cunio v. Premo

Court of Appeals of Oregon

April 12, 2017

STERLING RAY CUNIO, Petitioner-Appellant,
v.
Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant-Respondent.

          Argued and Submitted September 15, 2015

         Marion County Circuit Court 13C16780; Thomas M. Hart, Judge.

          Ryan T. O'Connor argued the cause for appellant. With him on the briefs was O'Connor Weber LLP.

          Erin Galli, Assistant Attorney General, argued the cause for respondent. On the brief were Frederick M. Boss, Deputy Attorney General, Anna M. Joyce, Solicitor General, and James Aaron, Assistant Attorney General.

          Before Sercombe, Presiding Judge, and Hadlock, Chief Judge, and Tookey, Judge. [*]

         Case Summary:

         This case presents similar issues to those that the Court of Appeals considered in Kinkel v. Persson, 276 Or.App. 427, 367 P.3d 956, rev allowed, 359 Or 525 (2016). In 1994, when he was 16 years old, petitioner participated in the kidnapping, robbery, and killing of two people. He was waived into adult court and, based on a stipulated facts trial and sentencing hearing, was convicted of two counts of aggravated murder, two counts of first-degree kidnapping, and two counts of first-degree robbery, and sentenced to two consecutive indeterminate life sentences plus 280 months in prison. Following the United States Supreme Court's decision in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), petitioner sought post-conviction relief in a successive post-conviction petition. The post-conviction court concluded that petitioner was procedurally barred under the Post-Conviction Hearing Act from bringing his claims in this case and, therefore, dismissed the petition with prejudice. Held: Where a ground for relief could reasonably have been-or was-raised on direct appeal or in an earlier petition for post-conviction relief, ORS 138.550(2) and (3) bar that ground for relief from being raised in a later petition. Here, the post-conviction court did not err in concluding that the bar on successive petitions bars the grounds for relief petitioner sought to raise in this case.

          SERCOMBE, P.J.

         This case presents similar issues to those we considered in Kinkel v. Persson. 276 Or.App. 427, 367 P.3d 956, rev allowed, 359 Or 525 (2016). In 1994, when he was 16 years old, petitioner participated in the kidnapping, robbery, and killing of two people. He was waived into adult court and, based on a stipulated facts trial, was convicted of two counts of aggravated murder, two counts of first-degree kidnapping, and two counts of first-degree robbery. Following a sentencing hearing, the trial court sentenced petitioner to two consecutive indeterminate life sentences plus 280 months in prison. Following the United States Supreme Court's decision in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), petitioner sought post-conviction relief in a successive post-conviction petition. The post-conviction court concluded that petitioner was procedurally barred under the Post-Conviction Hearing Act from bringing his claims in this case. Accordingly, the court granted the superintendent's motion for summary judgment and dismissed the petition with prejudice. On appeal from the resulting judgment, we conclude, as we did in Kinkel, that the "statutory rule against successive petitions" bars petitioner from raising the grounds for relief set forth in his petition in this case. Kinkel, 276 Or.App. at 429-30. Accordingly, we affirm the judgment of the post-conviction court.

         The relevant facts are not in dispute. In January 1994, when petitioner was 16 years old, petitioner and his friend Hill kidnapped and murdered two people, 18-year-old Camber and 21-year-old Dahl. At gunpoint, petitioner and Hill forced Camber into the passenger seat of her car and Dahl into a back seat in the vehicle. Both petitioner and Hill got into the car with the victims, and petitioner then drove the vehicle from Salem to the Albany area. Along the way, petitioner and Hill ordered the victims to give them items of personal property, including a wallet and jewelry. After stopping the car at a park near Albany, petitioner and Hill ordered the victims to get out of the car and lie down in the road. Petitioner then shot and killed Dahl; Hill shot and killed Camber. Petitioner and Hill later used Camber's vehicle to drive to Dahl's apartment in Salem, which they burglarized. Petitioner and Hill were arrested that same day. As noted, following a stipulated facts trial and a sentencing hearing, petitioner was convicted of two counts of aggravated murder, two counts of first-degree kidnapping, and two counts of first-degree robbery, and was sentenced to two consecutive life sentences followed by a total of 280 months in prison. We affirmed the trial court's judgment without opinion on direct appeal, and the Supreme Court denied review. See State v. Cunio, 138 Or.App. 375, 907 P.2d 1141 (1995), rev den, 322 Or 613 (1996).

         In 1997, petitioner filed a petition for post-conviction relief, requesting that the judgment of conviction be set aside and the sentences be vacated. In his petition, he asserted a number of grounds on which he sought relief. Among other grounds, petitioner asserted that the sentence imposed in his case was illegal as the sentencing court "imposed an excessive and improper sentence when it sentenced Petitioner to two consecutive life sentences as a 17 year old." He also asserted that the court imposed an illegal sentence on him, "a juvenile, when it sentenced him under the guidelines *** in violation of ORS 161.620."[1] The post-conviction court denied relief and, on appeal from the post-conviction judgment, we affirmed and the Supreme Court, again, denied review. See Cunio v. Thompson. 172 Or.App. 296, 19 P.3d 389, rev den, 332 Or 56 (2001).

         Petitioner filed a successive petition for postconviction relief in 2005. Again, in his 2005 petition for postconviction relief, petitioner asserted, among other things, that the sentence imposed by the trial court was illegal. In particular, he asserted that, on the aggravated murder counts, the trial court "sentenced petitioner to prison 'for the rest of his natural life' and expressly declined to impose any sort of minimum term, " and that those sentences amounted to "true-life sentences" for crimes committed when he was 16 years old, which, petitioner claimed, violated ORS 161.620 and his "federal constitutional rights of due process and equal protection, and to be free from cruel and unusual punishment, under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution." As before, the post-conviction court denied relief, we affirmed without opinion, and the Supreme Court denied review. See Cunio v. Belleque. 216 Or.App. 192, 171 P.3d 405 (2007), rev den, 345 Or 94 (2008).

         In 2012, the United States Supreme Court decided Miller, in which it held that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders." 567 U.S. at__, 132 S.Ct. at 2469. According to the Court,

" [m] andatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features-among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him-and from which he cannot usually extricate himself-no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and way the familial and peer pressures may have affected him. *** And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it."

Id. at__, 132 S.Ct. at 2468.

         Also in 2012, the Board of Parole and Post-Prison Supervision held a prison term hearing and issued an order establishing petitioner's prison term for the life sentences. See State ex rel Ensweiler v. Felton. 350 Or 592, 629, 260 P.3d 448 (2011) ("[P]risoners sentenced for aggravated murder are entitled to a parole hearing at which the board must either set a release date or explain why it has chosen not to do so."). The board set a projected release date on those sentences for April 19, 2042, after which petitioner would begin serving the 280 months to which he was sentenced on his kidnapping and robbery convictions.[2]

         In 2013, petitioner filed his second successive petition for post-conviction relief, claiming that the sentences imposed in the underlying criminal case is unlawful and asking the court to remand the case for new sentencing proceedings "during which the court must impose a sentence consistent with the Oregon and United States Constitutions."[3] In particular, he claimed that the sentences imposed for offenses committed when he was a juvenile violate the Eighth and Fourteenth Amendments to the United States Constitution and Article I, section 15, and Article I, section 16, of the Oregon Constitution because they deny him a meaningful opportunity to establish reformation or rehabilitation, or to be released during his life. He also claimed that his sentences violated ORS 161.620. He claimed that he had been deprived of adequate assistance of trial counsel because counsel did not object to his sentences as unconstitutional in violation of the Eighth and Fourteenth Amendments and Article I, sections 15 and 16. He asserted that he could not have reasonably raised any of his grounds for relief earlier or in a prior proceeding because the United States Supreme Court had not decided Miller until 2012, nor had his prison term on the aggravated murder convictions been set until that same year.

         The superintendent filed a motion for summary judgment asserting, among other things, that the petition was time barred under ORS 138.510(3) and did not fall within the escape clause under that statute; that is, according to the superintendent, petitioner did not assert claims that could not have reasonably been raised in an earlier petition.[4] Furthermore, the superintendent contended that petitioner was barred from obtaining relief on the grounds set forth in the petition under ORS 138.550(3), because the petition was successive and, again, did not raise claims that could not have been raised in an earlier petition.[5] Indeed, the superintendent pointed out that the petition raised grounds that had been raised before. According to the superintendent, there were "no genuine issues of material fact that all claims in the petition are untimely and successive" and, accordingly, the court should enter judgment against petitioner as a matter of law.

         Petitioner, for his part, filed a cross-motion for summary judgment asserting that each of his claims "satisfy the escape clauses [in ORS 138.510(3) and ORS 138.550(3)] for late and successive petitions." He asserted that he could not have raised his claims earlier because the United States Supreme Court had not yet decided Miller, and that he could not reasonably have anticipated the rule announced in that case. Furthermore, the length of petitioner's prison term on the aggravated murder sentences combined with the consecutive sentences on his other convictions created a de facto life without parole sentence and, according to petitioner, he did not know how long he would spend in prison until his release date on the aggravated murder convictions was set in 2012. For both of those reasons, he asserted that the grounds raised in his petition were not barred under ORS 138.510(3) or ORS 138.550(3). Furthermore, he asserted that "he was ...


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