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White v. Premo

Court of Appeals of Oregon

June 14, 2017

LAYCELLE TORNEE WHITE, Petitioner-Appellant,
v.
Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant-Respondent.

          Argued and submitted November 6, 2015

         Marion County Circuit Court 11C24240; Thomas M. Hart, Judge.

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

          Jeff J. Payne, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

          Before Duncan, Presiding Judge, and DeVore, Judge, and Garrett, Judge. [*]

         [286 Or.App. 124]

         Case Summary: Petitioner was convicted of aggravated murder and murder for acts that he committed with his twin brother in 1993, when they were 15. In a successive petition for post-conviction relief, petitioner alleged that his 800-month sentence for murder was unconstitutional because it was vertically disproportionate to his sentence for aggravated murder and because it was a de facto life sentence for a juvenile; he further alleged that his trial and previous post-conviction counsel were constitutionally inadequate for failing to raise those issues. The post-conviction court granted summary judgment to defendant, ruling that the asserted grounds for relief were untimely and successive and did not fall within the escape clauses of ORS 138.510(3) and ORS 138.550(3). On appeal, petitioner argues that the court erred in granting summary judgment because the asserted grounds for relief could not have been raised in a timely or previous petition. Held: Petitioner's challenges to his 800-month sentence are barred by ORS 138.510 and ORS 138.550, and petitioner cannot satisfy the escape clauses of those statutes based on a claim that his previous post-conviction counsel was inadequate. Thus, the post-conviction court did not err in granting summary judgment on those claims on the grounds that they were untimely and successive.

         Affirmed.

         [286 Or.App. 125]

          DUNCAN, P. J.

         Petitioner was convicted of aggravated murder and murder for acts that he committed with his twin brother in 1993, when they were 15. In the petition for post-conviction relief that gives rise to this appeal, petitioner alleged that his 800-month sentence for murder was unconstitutional because it was vertically disproportionate to his sentence for aggravated murder and because it was a de facto life sentence for a juvenile; he further alleged that his trial and previous post-conviction counsel were constitutionally inadequate for failing to raise those issues. The post-conviction court granted summary judgment to the state, [1] ruling that the asserted grounds for relief were untimely and successive and did not fall within the escape clauses of ORS 138.510(3) and ORS 138.550(3).[2] Petitioner now appeals the resulting judgment.

         As we will explain, the issues raised by petitioner's appeal have been conclusively resolved by three other cases involving petitioners who were convicted of murder or aggravated murder as juveniles, including, most recently, a decision concerning post-conviction claims by petitioner's twin brother. See White v. Premo, 285 Or.App. 570, ___ P.3d ___ (2017) (Lydell White); Cunio v. Premo, 284 Or.App. 698, ___ P.3d ___(2017); Kinkel v. Persson, 276 Or.App. 427, 367 P.3d 956, rev allowed, 359 Or. 525 (2016). In light of those cases, we affirm the judgment of the post-conviction court.

         I. BACKGROUND

         Petitioner and his twin brother, Lydell White, were 15 when they murdered an elderly couple in 1993. Petitioner was waived into adult court and, on stipulated facts, was [286 Or.App. 126] convicted of one count of aggravated murder and one count of murder. He received an indeterminate life sentence on the aggravated murder conviction and an 800-month concurrent sentence on the murder conviction.

         Petitioner filed a direct appeal in which he argued that the 800-month sentence was unlawful. His opening brief on appeal presented the following question: "Was the sentence of 800 months imposed upon [petitioner] for his conviction for murder excessive, and did it constitute cruel and unusual punishment?"[3] In the "Summary of Argument" section of his brief, petitioner stated:

"The sentence of 800 months imposed upon [petitioner] for murder was excessive and constitutes cruel and unusual punishment. First, this sentence is disproportionate, in violation of Article I, Section 16 of the Oregon Constitution. Although permitted to do so by the statute existing at the time, the court violated [petitioner's] constitutional right to be free of excessive punishment by imposing 800 months, which is more than twice the presumptive sentence [petitioner] should have received. Second, because [petitioner] was a juvenile, the sentence of 800 months operates as a mandatory minimum sentence, in fact if not in name. This was impermissible, and [petitioner's] sentence should be vacated."

         Although that summary did not invoke the federal constitution, the argument in support of his sole assignment of error referred to the Eighth Amendment to the United States Constitution:

"*** The court apparently had [statutory] authority to impose 800 months. However, [petitioner] challenges the sentence of 800 months based on the proportionality clause of Article I, section 16 of the Oregon Constitution. In addition, the sentence was excessive, cruel and unusual ...

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