retroactivity rule in Oregon

2023See id. at 747 (stating that Jackson “neither fashioned a new standard for judging the validity of guilty pleas nor mandated a new application of the test theretofore fashioned by the courts”); Chavez v. State of Oregon, 364 Or 654, 664-65 , 438 P3d 381 (2019) (explaining that, under federal law, a decision that does not announce a new rule but merely applies settled principles to new factual situations will apply to final convictions without any need to engage in a retroactivity analysis). 118 Peeler v. Reyes entitled to withdraw his plea merely because he discovers long after the plea has be

2023See id. at 747 (stating that Jackson “neither fashioned a new standard for judging the validity of guilty pleas nor mandated a new application of the test theretofore fashioned by the courts”); Chavez v. State of Oregon, 364 Or 654, 664-65 , 438 P3d 381 (2019) (explaining that, under federal law, a decision that does not announce a new rule but merely applies settled principles to new factual situations will apply to final convictions without any need to engage in a retroactivity analysis). 118 Peeler v. Reyes entitled to withdraw his plea merely because he discovers long after the plea has be

2004The court observed, however, that it had declined to follow the Supreme Court’s ruling on the retroactivity of the rule announced in Escobedo v. Illinois, 378 US 478 , 84 S Ct 1758 , 12 L Ed 2d 977 (1964), because it already had made its own determination as to whether the Escobedo rule should apply retroactively in Oregon and had chosen to continue to follow its own rule.

2004The court observed, however, that it had declined to follow the Supreme Court’s ruling on the retroactivity of the rule announced in Escobedo v. Illinois, 378 US 478 , 84 S Ct 1758 , 12 L Ed 2d 977 (1964), because it already had made its own determination as to whether the Escobedo rule should apply retroactively in Oregon and had chosen to continue to follow its own rule.

2002As explained below, I would conclude that petitioner has stated cognizable claims for post-conviction relief pursuant to ORS 138.530(1)(a) and ORS 138.530(1)(c), for the following reasons: (1) The retroactivity test of Teague v. Lane, 489 U.S. 288 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989), does not apply to, or control, the cognizability of claims, based on federal constitutional violations, under Oregon's post-conviction relief statutes. (2) Even if the retroactivity analysis of Teague v. Lane were applicable, Apprendi represents and announces a "watershed rule" that is subject to retroactive

2002As explained below, I would conclude that petitioner has stated cognizable claims for post-conviction relief pursuant to ORS 138.530(1)(a) and ORS 138.530(1)(c), for the following reasons: (1) The retroactivity test of Teague v. Lane, 489 U.S. 288 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989), does not apply to, or control, the cognizability of claims, based on federal constitutional violations, under Oregon's post-conviction relief statutes. (2) Even if the retroactivity analysis of Teague v. Lane were applicable, Apprendi represents and announces a "watershed rule" that is subject to retroactive

2022And she points to the Court’s decision in Brown v. Louisiana, 447 US 323 , 100 S Ct 2214 , 65 L Ed 2d 159 (1980), regarding the retroactivity of the rule announced in Burch v. Louisiana, 441 US 130 , 99 S Ct 1623 , 60 L Ed 2d 96 (1979): that when a person is tried by a six-person jury, the guilty verdict must be unanimous.

2022And she points to the Court’s decision in Brown v. Louisiana, 447 US 323 , 100 S Ct 2214 , 65 L Ed 2d 159 (1980), regarding the retroactivity of the rule announced in Burch v. Louisiana, 441 US 130 , 99 S Ct 1623 , 60 L Ed 2d 96 (1979): that when a person is tried by a six-person jury, the guilty verdict must be unanimous.

2022And she points to the Court’s decision in Brown v. Louisiana, 447 US 323 , 100 S Ct 2214 , 65 L Ed 2d 159 (1980), regarding the retroactivity of the rule announced in Burch v. Louisiana, 441 US 130 , 99 S Ct 1623 , 60 L Ed 2d 96 (1979): that when a person is tried by a six-person jury, the guilty verdict must be unanimous.

2022And she points to the Court’s decision in Brown v. Louisiana, 447 US 323 , 100 S Ct 2214 , 65 L Ed 2d 159 (1980), regarding the retroactivity of the rule announced in Burch v. Louisiana, 441 US 130 , 99 S Ct 1623 , 60 L Ed 2d 96 (1979): that when a person is tried by a six-person jury, the guilty verdict must be unanimous.

2017Thus, petitioner argues, “[w]hen the Legislative Assembly has not included a retroactivity requirement as part of the Post-Conviction Hearing Act, the judiciary has no power to insist upon it.” Petitioner’s argument is inconsistent with our previous interpretation of the Post-Conviction Hearing Act in Teague v. Palmateer, 184 Or App 577 , 57 P3d 176 (2002), rev den, 335 Or 181 (2003), as well as the Oregon Supreme Court’s longstanding approach to that act.

2017Thus, petitioner argues, “[w]hen the Legislative Assembly has not included a retroactivity requirement as part of the Post-Conviction Hearing Act, the judiciary has no power to insist upon it.” Petitioner’s argument is inconsistent with our previous interpretation of the Post-Conviction Hearing Act in Teague v. Palmateer, 184 Or App 577 , 57 P3d 176 (2002), rev den, 335 Or 181 (2003), as well as the Oregon Supreme Court’s longstanding approach to that act.

2016Petitioners, however, do not explain why that principle should be applied here, beyond arguing that, in an earlier case — Gooderham v. AFSD, 64 Or App 104 , 667 P2d 551 (1983) — we had looked to other authorities, including federal case law, for guidance in determining whether a rule’s retroactivity clause was valid, “presumably because the Oregon Administrative Procedures Act parallels and is based on the federal [Administrative Procedure Act].” 3 To be clear, petitioners do not urge us to apply the analysis that we applied in Gooderham — that is, they do not contend that the retroactive rule

2016Petitioners, however, do not explain why that principle should be applied here, beyond arguing that, in an earlier case — Gooderham v. AFSD, 64 Or App 104 , 667 P2d 551 (1983) — we had looked to other authorities, including federal case law, for guidance in determining whether a rule’s retroactivity clause was valid, “presumably because the Oregon Administrative Procedures Act parallels and is based on the federal [Administrative Procedure Act].” 3 To be clear, petitioners do not urge us to apply the analysis that we applied in Gooderham — that is, they do not contend that the retroactive rule

2015Id. 12 North is notable, not for the holding discussed above, but for its conclusion that Oregon’s post-conviction statutes do not permit a petitioner to raise an issue on post-conviction that the petitioner reasonably could have raised on direct appeal if he or she had made a contemporaneous objection below. 13 Escobedo held that, when a person has become the focal suspect, been taken into police custody, and been questioned by the police and when the person has asked for and been denied counsel, the Sixth Amendment right to counsel attaches and requires that the person be told of the "absolu

2006Although it is true that a number of courts that have upheld consecutive sentences against Apprendi challenges have done so on the ground that the statutory schemes did not require judicial factfinding, see, e.g., United States v. Davis, 329 F.3d 1250 (11th Cir.), cert. den., 540 U.S. 925 , 124 S.Ct. 330 , 157 L.Ed.2d 225 (2003) (consecutive sentence was discretionary under federal guidelines); State v. Bramlett, 273 Kan. 67 , 41 P.3d 796 (2002) (consecutive sentence was discretionary under state statute), a number of other jurisdictions have statutes governing consecutive sentencing that bear

2006Although it is true that a number of courts that have upheld consecutive sentences against Apprendi challenges have done so on the ground that the statutory schemes did not require judicial factfinding, see, e.g., United States v. Davis, 329 F.3d 1250 (11th Cir.), cert. den., 540 U.S. 925 , 124 S.Ct. 330 , 157 L.Ed.2d 225 (2003) (consecutive sentence was discretionary under federal guidelines); State v. Bramlett, 273 Kan. 67 , 41 P.3d 796 (2002) (consecutive sentence was discretionary under state statute), a number of other jurisdictions have statutes governing consecutive sentencing that bear

2006Although it is true that a number of courts that have upheld consecutive sentences against Apprendi challenges have done so on the ground that the statutory schemes did not require judicial factfinding, see, e.g., United States v. Davis, 329 F.3d 1250 (11th Cir.), cert. den., 540 U.S. 925 , 124 S.Ct. 330 , 157 L.Ed.2d 225 (2003) (consecutive sentence was discretionary under federal guidelines); State v. Bramlett, 273 Kan. 67 , 41 P.3d 796 (2002) (consecutive sentence was discretionary under state statute), a number of other jurisdictions have statutes governing consecutive sentencing that bear

2006Although it is true that a number of courts that have upheld consecutive sentences against Apprendi challenges have done so on the ground that the statutory schemes did not require judicial factfinding, see, e.g., United States v. Davis, 329 F.3d 1250 (11th Cir.), cert. den., 540 U.S. 925 , 124 S.Ct. 330 , 157 L.Ed.2d 225 (2003) (consecutive sentence was discretionary under federal guidelines); State v. Bramlett, 273 Kan. 67 , 41 P.3d 796 (2002) (consecutive sentence was discretionary under state statute), a number of other jurisdictions have statutes governing consecutive sentencing that bear

2006Although it is true that a number of courts that have upheld consecutive sentences against Apprendi challenges have done so on the ground that the statutory schemes did not require judicial factfinding, see, e.g., United States v. Davis, 329 F.3d 1250 (11th Cir.), cert. den., 540 U.S. 925 , 124 S.Ct. 330 , 157 L.Ed.2d 225 (2003) (consecutive sentence was discretionary under federal guidelines); State v. Bramlett, 273 Kan. 67 , 41 P.3d 796 (2002) (consecutive sentence was discretionary under state statute), a number of other jurisdictions have statutes governing consecutive sentencing that bear

2004Fair, 263 Or at 387 .

2000In point of fact, we have previously construed the very same retroactivity clause and have concluded that it has the effect of changing the law without a subsequent "adjudicative act." See, e.g., Volk v. America West Airlines, 135 Or.App. 565 , 899 P.2d 746 (1995), rev. den. 322 Or. 645 , 912 P.2d 376 (1996).

2000In point of fact, we have previously construed the very same retroactivity clause and have concluded that it has the effect of changing the law without a subsequent "adjudicative act." See, e.g., Volk v. America West Airlines, 135 Or.App. 565 , 899 P.2d 746 (1995), rev. den. 322 Or. 645 , 912 P.2d 376 (1996).

1998The Court distinguished earlier cases to the contrary as being based on notions of substantive due process that are now outdated: “Those cases were decided during an era characterized by exacting review of economic legislation under an approach that ‘has long since been discarded.’ ” Id. at 34 (quoting Ferguson v. Skrupa, 372 US 726, 730 , 83 S Ct 1028 , 10 L Ed 2d 93 (1963)). 6 Oregon Laws 1997, Chapter 313 (SB 936), was signed by the Governor and became effective on June 12,1997.

1998The Court distinguished earlier cases to the contrary as being based on notions of substantive due process that are now outdated: “Those cases were decided during an era characterized by exacting review of economic legislation under an approach that ‘has long since been discarded.’ ” Id. at 34 (quoting Ferguson v. Skrupa, 372 US 726, 730 , 83 S Ct 1028 , 10 L Ed 2d 93 (1963)). 6 Oregon Laws 1997, Chapter 313 (SB 936), was signed by the Governor and became effective on June 12,1997.

1998The Court distinguished earlier cases to the contrary as being based on notions of substantive due process that are now outdated: “Those cases were decided during an era characterized by exacting review of economic legislation under an approach that ‘has long since been discarded.’ ” Id. at 34 (quoting Ferguson v. Skrupa, 372 US 726, 730 , 83 S Ct 1028 , 10 L Ed 2d 93 (1963)). 6 Oregon Laws 1997, Chapter 313 (SB 936), was signed by the Governor and became effective on June 12,1997.

1971The retroactivity rule which we adopted in Elliott v. Gladden, 244 Or 134 , 411 P2d 287 (1966) and elaborated upon in Guse v. Gladden, 243 Or 406 , 414 P2d 317 (1966) has been applied on a number of occasions since the decision of the United States Supreme Court in Johnson v. New Jersey.

1971The retroactivity rule which we adopted in Elliott v. Gladden, 244 Or 134 , 411 P2d 287 (1966) and elaborated upon in Guse v. Gladden, 243 Or 406 , 414 P2d 317 (1966) has been applied on a number of occasions since the decision of the United States Supreme Court in Johnson v. New Jersey.

1971The retroactivity rule which we adopted in Elliott v. Gladden, 244 Or 134 , 411 P2d 287 (1966) and elaborated upon in Guse v. Gladden, 243 Or 406 , 414 P2d 317 (1966) has been applied on a number of occasions since the decision of the United States Supreme Court in Johnson v. New Jersey.

1971The retroactivity rule which we adopted in Elliott v. Gladden, 244 Or 134 , 411 P2d 287 (1966) and elaborated upon in Guse v. Gladden, 243 Or 406 , 414 P2d 317 (1966) has been applied on a number of occasions since the decision of the United States Supreme Court in Johnson v. New Jersey.

1967Because of our prior decision in State v. Neely, supra, Miranda did not decide anything startlingly new which would disrupt law enforcement and the administration of justice in Oregon and, therefore, there is no reason to adopt the retroactivity rule announced in Johnson v. New Jersey, 384 US 719 , 86 S Ct 1772 , 16 L ed2d 882 (1966).

1967Because of our prior decision in State v. Neely, supra, Miranda did not decide anything startlingly new which would disrupt law enforcement and the administration of justice in Oregon and, therefore, there is no reason to adopt the retroactivity rule announced in Johnson v. New Jersey, 384 US 719 , 86 S Ct 1772 , 16 L ed2d 882 (1966).