280
Submitted November 4, affirmed December 8, 2021, petition for review denied
April 7, 2022 (
369 Or 507
)
SALVADOR MICHAEL HERRERA,
Petitioner-Appellant,
v.
Brad CAIN,
Superintendent,
Snake River Correctional Institution,
Defendant-Respondent.
Malheur County Circuit Court
16CV39268; A173303
J. Burdette Pratt, Senior Judge.
Jason Weber and O’Connor Weber LLC filed the brief for
appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Greg Rios, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
PER CURIAM
Affirmed.
Cite as
316 Or App 280
(2021) 281
PER CURIAM
Petitioner appeals a judgment denying his petition for post-conviction relief. He assigns error to the post-conviction court’s determination that his trial counsel
was not constitutionally ineffective for failing to preserve the argument that his life sentence violated the
Eighth Amendment to the United States Constitution. We
affirm.
Petitioner pleaded guilty to committing several felony sex offenses against three minors. Because he had previously been convicted of three felony sex offenses, he faced
a presumptive true-life sentence. ORS 137.719(1) (“The
presumptive sentence for a sex crime that is a felony is life
imprisonment without the possibility of release or parole if
the defendant has been sentenced for sex crimes that are
felonies at least two times prior to the current sentence.”).
Petitioner requested that the trial court enter a downward departure from that presumptive sentence, arguing
that it was disproportionate to his offenses and therefore
unconstitutional as applied to him. The trial court ultimately rejected that argument, noting that petitioner had
been convicted of three prior felony sex offenses and had
already avoided a true-life sentence for his most recent prior
conviction.
On the direct appeal of his conviction, petitioner
renewed his argument that the sentence was unconstitutional. The state responded that, although petitioner had
preserved his claim under Article I, section 16, of the Oregon
Constitution, he had failed to preserve an argument under
the Eighth Amendment to the United States Constitution.
The state further argued that the sentence did not violate
petitioner’s rights under either constitution. We affirmed
without written opinion. State v. Herrera,
(2014).
Petitioner now contends that his trial counsel’s failure to preserve the Eighth Amendment argument, rendering it unavailable on direct appeal, amounts to ineffective
assistance of counsel. We reject that contention. Assuming
trial counsel failed to preserve the Eighth Amendment
282 Herrera v. Cain
argument1 and that that failure amounted to deficient performance, petitioner was not prejudiced. See Stau v. Taylor,
(2020) (recognizing that the “question is whether trial counsel’s decision … prejudiced petitioner, that is, could have
tended to affect the outcome of the case” (internal quotation
marks omitted)). We conclude that petitioner’s sentence did
not violate the Eighth Amendment for the same reasons it
did not violate Article I, section 16. See State v. Ryan,
(2017) (observing that “the test for
proportionality under the Eighth Amendment is similar to
that under Article I, section 16”).
Affirmed.
1
Although the state argued on petitioner’s direct appeal that the issue was
unpreserved, the superintendent now argues that trial counsel did preserve the
argument. We assume without deciding that the error is unpreserved based on
the state’s first assertion and need not address petitioner’s unpreserved arguments relating to judicial estoppel.
