text:
    RIVERBEND LAND, LLC, Plaintiff/Appellant, v. STATE of Oklahoma, EX REL. OKLAHOMA TURNPIKE AUTHORITY, Defendant/Appellee.
    Case No. 116,579
    Court of Civil Appeals of Oklahoma, Division No. 4.
    Decided: August 10, 2018 Rehearing Denied: October 22, 2018 Mandate Issued: June 19, 2019
    Kraettli Q. Epperson, Maris A. Skinner, MEE MEE HOGE & EPPERSON PLLP, Oklahoma City, Oklahoma, for Plaintiff/Appellant
    Phillip G. Whaley, Grant M. Lucky, RYAN WHALEY COLDIRON JANTZEN PETERS & WEBBER PLLC, Oklahoma City, Oklahoma, for Defendant/Appellee
   OPINION BY DEBORAH B. BARNES, PRESIDING JUDGE:

¶1 In this quiet title action, Riverbend Land, LLC (Riverbend) appeals from an order of the district court granting summary judgment to State of Oklahoma, ex rel. Oklahoma Turnpike Authority (OTA). Based on our review of the summary judgment record and the applicable law, we reverse and remand for further proceedings.

BACKGROUND

¶2 Mamosa Properties, L.L.C. and Shana, L.L.C. (collectively, Mamosa) acquired title to certain tracts of land by warranty deed on December 30, 1997, from Property Enterprises Corporation. This property was subsequently conveyed to Expert SWC Rockwell Memorial, LLC (Expert) in 2007. On November 6, 2009, by special warranty deed and corrected warranty deed, Riverbend acquired certain real property from Expert that had been conveyed to Expert by Mamosa. Two tracts of land were conveyed to Riverbend, but only one tract, consisting of approximately 7.34 acres, is the subject of Riverbend's quiet title action.

¶3 Prior to Expert's and Riverbend's acquisition of the subject property, in November 1998, Mamosa conveyed to OTA by general warranty deed the following described property "together with abutter's rights, if any, to wit:"

A tract of land in the NE¼ of Section 17, T-13-N, R-4-W, I.M., Oklahoma County, Oklahoma, being more particularly described as;
Beginning in the NE Corner of said NE¼ (NE Corner being a PK Nail w/Tag); Thence S 00°19'07" E on the East Line of said NE¼, a distance of 886.72 feet to a point; Thence S 89°40'53" W, a distance of 33.00 feet to a point; Thence N 03°30'05"
W, a distance of 725.53 feet to a point; Thence N 86°07'52" W, a distance of 2000.02 feet to a point; Thence N 00°08'41" E, a distance of 33.00 feet to a point; Thence S 89°51'19" E, a distance of 2067.76 feet to the Point or Place of Beginning.
Containing 245,748.76 square feet or 5.64 acres more or less, of new right-of-way, the area included in the above description being right-of-way occupied by the present turnpike, together with all abutters rights, including access from the remaining portion of the grantors land onto the LIMITED ACCESS TURNPIKE to be constructed on the above described property, except that the grantors, their heirs, successors or assigns, shall have the right of access to the Section Line Road, along the East side of the above described property, beginning at a point on the East Line of the NE¼ a distance of 486.70 feet South of the NE Corner of said NE¼ and extending South, also except that the grantors, their heirs, successors or assigns, shall have the right of access from the West 1673.95 feet of the NE¼ onto the frontage road to be constructed between said property and the LIMITED ACCESS TURNPIKE, also except that the grantors, their heirs, successors or assigns, shall not have the right of access onto a frontage road to be constructed between said property and the LIMITED ACCESS TURNPIKE beginning at the NE Corner of said NE¼ and extending West 1071.09 feet on the North Line of said NE¼ and beginning at the NE Corner of said NE¼ and extending South 412.22 feet on the East Line of said NE¼[.]

¶4 Riverbend initiated the present action because OTA claims the abutters rights to portions of the 7.34 acre tract through the 1998 OTA/Mamosa Deed. In 2016 Riverbend attempted to sell the subject land to a third party, but that sale did not occur because of OTA's claim. It is undisputed that the title insurance companies used by Expert, Riverbend, and the prospective purchaser did not disclose OTA's claim to the abutters rights. Riverbend filed a motion for summary judgment in which, among other arguments, it claims it is a bona fide purchaser for value and had no notice - actual or constructive - of the OTA/Mamosa Deed.

¶5 Riverbend argues nothing in the deeds or in its chain of title states the grantors' "Express Reservation of the Riverbend Lands Abutters Rights." It argues, neither Mamosa nor Expert "reserved" the abutters rights in the Mamosa/Expert Deed or the Expert/Riverbend Deed. Riverbend argues the abutters rights are a part of the fee simple title it acquired through the Property/Mamosa Deed, Mamosa/Expert Deed (and correction deed) and Expert/Riverbend Deed (and correction deed), and "such ... Riverbend Lands Abutters Rights were neither expressly reserved by Riverbend's predecessors in title (i.e., Property, [Mamosa], and Expert), nor conveyed of record to the OTA." Consequently, it argues, Riverbend acquired the entire fee simple interest in the subject property including the abutters rights. Riverbend further contends that unless OTA can "show a conveyance to it including the specific legal description ... describing (the remaining portion of the grantors land) ... that would have covered the related Riverbend Lands Abutters Rights ... such rights were not conveyed to OTA."

¶6 Further, Riverbend argues, it cannot be held to have had constructive notice of the OTA/Mamosa Deed because neither the legal description for the entirety of Mamosa's "remaining portion" of land nor the legal description for Riverbend's 7.34 acre tract was specifically described in the OTA/Mamosa Deed. It argues 16 O.S. 2011 § 16 and 19 O.S. 2011 § 298 require a specific legal description to impose constructive knowledge on a subsequent bona fide purchaser for value. Further, 16 O.S. § 15 provides in pertinent part: "no deed ... or other instrument relating to real estate ... shall be valid as against third persons unless acknowledged and recorded as herein provided." (Emphasis added.)

¶7 Riverbend argues that what was conveyed by the OTA/Mamosa Deed was the 5.64 acre tract of land described by a specific legal description in what it labels as "Tract 1" and set forth in the first paragraph of that deed. Riverbend asserts that in the second paragraph of that deed there is some further description of Tract 1 in the first clause of the first sentence, but further argues that the rest of that sentence references what it labels as "Tract 2" through the following language:

together with all abutters rights, including access from the remaining portion of the grantors land onto the LIMITED ACCESS TURNPIKE to be constructed on the above described property[.]

¶8 It is Tract 2, Riverbend argues, that has no legal description of "the remaining portion of the grantors land" but is alleged by OTA to be the real property from which some of the "bundle of rights" of that real property-that is, the abutters rights-have been conveyed to OTA in the OTA/Mamosa Deed.

¶9 Riverbend does not deny that it and Expert have some "common owner." "[B]ut," it argues, "such fact is irrelevant and immaterial to the issue in front of this court: Did the indefinite phrase[ ] 'remaining portion of the grantors land' give a third party notice of a specific claim of real property interest? The vague description would be impossible to locate and is invalid." It further argues, "What is at issue is the adequacy of the [OTA/Mamosa Deed's] language concerning the land whose abutter's rights are at issue"-"vague legal descriptions are inadequate to give constructive notice to third parties."

¶10 Thus, Riverbend argues it did not have constructive notice even though the OTA/Mamosa Deed was filed of record and predates the Expert/Riverbend Deed. "[T]he existence and the recording of [the OTA/Mamosa Deed] is irrelevant and immaterial," it argues, because the OTA/Mamosa Deed "fails to adequately describe the lands being stripped of such abutter's rights." "Again, the only question in front of this court ... is whether the 'remaining portion of the grantors land' phrase is specific enough to constitute constructive notice."

¶11 In its response in opposition to Riverbend's motion, OTA argues, among other things, that Riverbend had constructive notice presumed in law pursuant to 16 O.S. 2011 § 16. OTA argues the OTA/Mamosa Deed was accepted for recording by the county clerk and was filed of record for more than ten years prior to the Expert/Riverbend Deed. It asserts that deed describes both "the 5.64 acres of real property purchased by OTA" and "describes that OTA, together with real property purchased, also acquired the grantor's abutters rights, including access from the 'remaining portion of the grantor's land' onto the limited access turnpike[.]" OTA argues that deed also contained exceptions such that "grantors were given access at specifically described areas along Rockwell and what is now Memorial Road[.]" The OTA/Mamosa Deed also excluded from OTA limits of no access certain "remaining portions of the grantors land," including along the east side of the right of way conveyed to OTA "beginning at a point on the East Line of the NE¼ a distance of 486.70 feet South of the NE Corner of said NE¼ and extending South"-land that encompasses part of the subject property later conveyed to Riverbend. Thus, OTA argues it is "absurd to suggest that you can't figure out where the property that is going to be blocked access here from [the OTA/Mamosa Deed]." OTA, therefore, contends Riverbend is presumed in law to have constructive knowledge of the OTA/Mamosa Deed and its provisions pursuant to 16 O.S. 2011 § 16.

¶12 Additionally, OTA argues Riverbend had record notice of the OTA/Mamosa Deed because that deed is in the chain of title of Riverbend's 7.34 acre tract. It asserts "Riverbend erroneously here seeks to limit chain of title to only those conveyances made to the successive holders of record title, while ignoring conveyances by the holders to persons other than successors." OTA argues that while "a purchaser of real estate is not bound to take notice of registered liens or deeds created or executed by any person other than those through whom he is compelled to deraign his title," a "purchaser (like Riverbend) is charged with notice of all deeds created or executed by the successive holders of record title through which the purchaser acquires his/her interest (like Mamosa)." Having such record notice, OTA contends, Riverbend is presumed to have had notice of the entirety of the deed's provisions and, thus, was on notice of the blocked access areas, or is at least on notice that further inquiry was needed.

¶13 The trial court granted summary judgment to OTA finding Riverbend was not a bona fide purchaser for value because it had constructive knowledge of OTA's rights in the subject property. The trial court's judgment implicitly determined the OTA/Mamosa Deed was within the chain of title in the Mamosa/Expert Deed and subsequent Expert/Riverbend Deed. The trial court found the 7.34 acre tract "acquired by Riverbend was previously owned by Mamosa from 1997 until 2007, and was a part of the NE¼ owned by Mamosa at the time of the [OTA/Mamosa Deed] and was adjacent to the 5.64 acre tract of real property ... Mamosa conveyed to [OTA] in 1998 through the [OTA/Mamosa Deed]." The court determined "Riverbend was thus put on constructive notice of the rights and interests conveyed to [OTA] through the recording of the [OTA/Mamosa Deed], including, but not limited to, the abutter's rights described therein." The trial court evidently made this determination because the Mamosa/Expert Deed and the OTA/Mamosa Deed conveyed real property owned by Mamosa prior to the Expert/Riverbend Deed and conveyed real property within the same township, section and range, and because Mamosa was the common grantor among OTA, Expert, and Riverbend.

¶14 Riverbend appeals from the grant of summary judgment to OTA, specifically arguing the inadequacy of the description in the OTA/Mamosa Deed to give it or other third parties constructive notice of OTA's purported abutters rights "associated with an unspecified tract of land." It also argues the 5.64 tract of land conveyed to OTA, the legal description of which is set out in the OTA/Mamosa Deed, is "outside the chain of title to the subject [property.]"

STANDARD OF REVIEW

¶15 "This appeal stems from a grant of summary judgment, which calls for de novo review." Wood v. Mercedes-Benz of Okla. City , 2014 OK 68, ¶ 4, 336 P.3d 457 (citations omitted). Under the de novo standard, this Court is afforded "plenary, independent, and non-deferential authority to examine the issues presented." Harmon v. Cradduck , 2012 OK 80, ¶ 10, 286 P.3d 643 (citation omitted). This appeal also concerns statutory construction, which is a question of law, State v. Tate , 2012 OK 31, ¶ 7, 276 P.3d 1017, and, consequently, requires a de novo review standard, Kluver v. Weatherford Hosp. Auth. , 1993 OK 85, ¶ 14, 859 P.2d 1081.

ANALYSIS

¶16 Although OTA objected to Riverbend's motion for summary judgment on various grounds including what is termed inquiry notice, the only basis upon which the trial court granted summary judgment to OTA was on the ground of constructive notice presumed in law pursuant to 16 O.S. 2011 § 16. Because we conclude the OTA/Mamosa Deed does not contain the required legal description of "the remaining portion of the grantors land" and thus does not contain a legal description of the 7.34 acre tract at issue here, the mandate of 19 O.S. 2011 § 298(A) has not been met, and a third party, therefore, cannot be held to have had constructive notice of that deed pursuant to 16 O.S. 2011 § 16. We likewise conclude the OTA/Mamosa Deed did not give Riverbend constructive notice through OTA's chain-of-title argument with respect to the 7.34 acre tract because that deed does not comply with the recording statutes.

¶17 Section 298(A) "require[s] that the mandates of the Legislature be complied with, as expressed in Sections 287 and 291," and requires that the deed or other instrument "shall by its own terms describe the property by its specific legal description , and provide such information as is necessary for indexing as required in Sections 287 and 291 of this title[.]" (Emphasis added.) Therefore, to be "recorded as prescribed by law," 16 O.S. § 16, such that constructive notice of the deed is presumed in law as to third parties, § 298(A) clearly and unambiguously provides that a record of the deed must be made as required by both §§ 287 and 291-that is, in both the grantor/grantee index and the tract index, both of which require a description of the property-and that a specific legal description of the property must be provided.

¶18 We are not persuaded by OTA's apparent argument that the legal descriptions in the OTA/Mamosa Deed pertaining to the exceptions provide such notice. That argument rests upon a supposition that Riverbend had, in effect, a duty or obligation, to locate a filed deed that did not contain a specific legal description of real property Riverbend subsequently purchased, though arguably that deed affected interests in the real property Riverbend subsequently purchased. That is, the mere fact that a filed deed may contain information from which one could "figure out" what interest was restricted, is not, in our view, sufficient to impose constructive notice of the existence of that deed on a third party pursuant to 16 O.S. § 16.

¶19 Though the issue presented was one principally concerned with the intent of the parties to an assignment of an interest in oil and gas, in Plano Petroleum, LLC v. GHK Exploration, L.P. , 2011 OK 18, 250 P.3d 328, the Oklahoma Supreme Court addressed the infirmity of "an instrument which contains absolutely no legal description of the leased premises." Id. ¶ 9. The Supreme Court stated:

There is a long-standing black letter rule of law that "the description of the premises conveyed must be so certain and definite as to enable the land to be identified." Arbuckle Realty Trust v. Southern Rock Asphalt Co. , 1941 OK 237, ¶ 8 [189 Okla. 304], 116 P.2d 912, 914. See also Key v. Key , 1963 OK 288, ¶ 22, 388 P.2d 505, 511. That requirement is more than a legal nicety, it is essential for recording in the county clerk's office and for establishing a chain of title. [ Coley v. Williams , 1924 OK 323, ¶ 3, 98 Okla. 143, 224 P. 345, 346.]

Plano , ¶ 9 (emphasis added). The Court further explained: "[T]he want of an adequate and precise description of the premises tends to render [the] title unmarketable and objectionable to future purchasers; and ... a conveyance, though admitted to record, is not notice to subsequent purchasers, unless the granted premises be therein so plainly and clearly described that a person reading the deed may locate and identify the property therefrom." Id. ¶ 9 n.4 (quoting Coley ).

¶20 Nor are we persuaded by OTA's argument that Riverbend had constructive notice of the OTA/Mamosa Deed because Mamosa is Riverbend and OTA's common grantor. OTA argues that its deed is in Riverbend's chain of title because of their common grantor, even though, as previously discussed, no legal description of Riverbend's 7.34 acre tract appears in OTA's deed. This chain-of-title argument stands in contravention of the recording statutes.

The general rule is that the record of an instrument entitled to be recorded will give constructive notice to persons bound to search for it. But constructive notice being a creature of statute, no record will give constructive notice unless such effect has been given to it by some statutory provision.

Crater v. Wallace , 1943 OK 250, ¶ 11, 193 Okla. 32, 140 P.2d 1018 (citation omitted). In Crater , the instrument at issue was not one entitled to be recorded so it could not be found to have given constructive notice to some third party. Thus, in the present case, the record of the OTA/Mamosa Deed will not give constructive notice to Riverbend "unless such effect has been given to it by some statutory provision." That statutory authority, as above discussed, is found in the recording statutes and they require a specific legal description of the property affected by the OTA/Mamosa Deed. OTA's argument would, in effect, defeat the express requirements of the recording statutes.

¶21 Consequently, on the summary judgment record herein, Riverbend's position as a bona fide purchaser for value cannot be defeated on the basis of constructive notice in law pursuant to 16 O.S. § 16 or under the chain-of-title argument offered by OTA.

CONCLUSION

¶22 We conclude the trial court erred in granting summary judgment to OTA for the reasons herein discussed and, therefore, we reverse the judgment and remand the cause for further proceedings.

¶23 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

RAPP, J., and GOODMAN, J., concur.

      Various general warranty, special warranty, and correction special warranty deeds are filed of record pertaining to land conveyed to Riverbend and OTA as well as to land conveyed by Mamosa to Expert and other entities unconnected to this lawsuit. The parties do not dispute the accuracy of the legal descriptions contained in the various correction deeds and all the deeds at issue were filed of record.

      This tract of land (the subject property) is located in Oklahoma City and "contains 7.34 acres, more or less." The eastern boundary of the subject property borders a right of way acquired by OTA and by Rockwell Avenue, and the northern boundary borders a right of way acquired by OTA and by Memorial Road and lies to the south of the Kilpatrick Turnpike.

      (Emphasis in original.)

      Under Oklahoma law, "[t]here is a statutory presumption that every estate in land granted by a deed shall be deemed an estate in fee simple unless limited by express words." Cleary Petroleum Corp. v. Harrison , 1980 OK 188, ¶ 8, 621 P.2d 528 (citing 16 O.S. [now 2011] § 29: "Every estate in land which shall be granted, conveyed or demised by deed or will shall be deemed an estate in fee simple and of inheritance, unless limited by express words.").

      In support of this argument, Riverbend relies on, among others, 16 O.S. 2011 § 29 and State ex rel. Department of Highways v. Allison , 1962 OK 151, ¶ 5, 372 P.2d 850 ("The right to 'access, light, air or view' constitutes 'abutters rights' which are now recognized in most jurisdictions. These rights are in the nature of easements belonging to the owners of property abutting public highways, and they exist regardless of whether the State owns the fee of the highway, or merely an easement therefor." (citations omitted)).

      Title 16 O.S. 2011 § 16 provides: "Every conveyance of real property acknowledged or approved, certified and recorded as prescribed by law from the time it is filed with the register of deeds for record is constructive notice of the contents thereof to subsequent purchasers, mortgagees, encumbrancers or creditors."

      Title 19 O.S. 2011 § 298(A) concerning the information needed for indexing and the duty of the register of deeds provides, in part, as follows:
      Every county clerk in this state shall require that the mandates of the Legislature be complied with, as expressed in Sections 287 and 291 of this title, and for that purpose, every instrument offered which may be accepted by the county clerk for recording, affecting specific real property whether of conveyance, encumbrance, assignment, or release of encumbrance, lease, assignment of lease or release of lease, shall be an original or certified copy of an original instrument and clearly legible in accordance with the provisions of subsection B of this section, and shall by its own terms describe the property by its specific legal description , and provide such information as is necessary for indexing as required in Sections 287 and 291 of this title[.]
      (Emphasis added.) Section 287 requires the register of deeds to keep an index of deeds direct and inverted that shall be divided into columns, with headings for the respective columns identifying, among other matters, the grantor, grantee, the property recorded and description of the property. Section 291 requires the county clerk to keep a numerical index "in which shall be noted all deeds relating to tracts of land and units within unit ownership estates within the limits of such county," and, among other things, requires a legal description of the property. Section 291 further provides:
      It shall be the duty of the county clerk to make correct entries in such numerical index of all instruments recorded concerning tracts of land under the appropriate heading, and in the subdivision devoted to the particular quarter section described in the instrument making the conveyance, and the county clerk shall enter in their appropriate division, before any other entries are made, all the transfers embraced in the instrument recorded within his office, commencing with the first.

      See , n.3, supra , and accompanying text.

      (Emphasis added.) Riverbend does not reference the remaining language in this sentence which describes certain "exceptions."

      See 25 O.S. 2011 § 12 ("Constructive notice is notice imputed by the law to a person not having actual notice.").

      OTA quotes Smith v. Williams , 1928 OK 333, ¶ 37, 132 Okla. 141, 269 P. 1067 (emphasis omitted), in support of its argument.

      OTA argues Riverbend had constructive notice implied from the facts and circumstances about which it did have actual knowledge but about which it failed to make reasonable inquiry, relying on 25 O.S. 2011 § 13. Section 13 provides: "Every person who has actual notice of circumstances sufficient to put a prudent man upon inquiry as to a particular fact, and who omits to make such inquiry with reasonable diligence, is deemed to have constructive notice of the fact itself." Though not addressing constructive notice as concerns deeds and third party purchasers, in discussing "implied notice," another division of this Court stated "the rule of '[i]mplied notice' deals with a presumption of fact, relating to 'what one can learn by reasonable inquiry[.]" Red Rock Distrib. Co. v. State ex rel. Reneau , 1999 OK CIV APP 124, ¶ 10, 993 P.2d 142 (citing Charles v. Roxana Petroleum Corp. , 282 F. 983, 988 (8th Cir. 1922) ), cert. denied , 261 U.S. 614, 43 S.Ct. 361, 67 L.Ed. 827 (1923). In discussing 16 O.S. § 16, the Charles Court explained:
      A recorded deed is therefore constructive notice under this section of the contents thereof-that is, of what appears on the face of the instrument. There is considerable misuse of the term "constructive notice." Constructive notice is a presumption of law. Implied notice is a presumption of fact. Constructive notice makes it impossible for the person to deny the matter concerning which notice is given. Implied notice relates to what one can learn by reasonable inquiry. It arises from actual notice of circumstances, and not from constructive notice. ...
      Id. at 988-89. In discussing 25 O.S. § 13, the federal court further explained:
      The Oklahoma statute makes constructive notice under certain circumstances and conditions take the place of what is usually termed implied notice. There is no constructive notice, however, under the Oklahoma statute, unless there is actual notice of circumstances sufficient to put a prudent man on inquiry. ...
      ....
      While the general doctrines of notice, as enunciated in the decisions of most of the courts, do not go as far as the Oklahoma statute on the subject of constructive notice, yet the doctrine of implied notice from knowledge of facts sufficient to put a reasonably prudent man on inquiry in its results reaches the same end and accomplishes practically the same purpose.
      282 F. at 989 (citations omitted). See also Crater v. Wallace , 1943 OK 250, ¶ 17, 193 Okla. 32, 140 P.2d 1018 (Title 16 O.S. § 16 could not provide constructive notice to an innocent purchaser of value of certain surface and mineral rights because the instrument at issue was not one entitled to be recorded nor a conveyance of property; nor could 25 O.S. § 13 defeat plaintiff's quiet title action because he had "no actual knowledge of [certain] adverse claims, or knowledge of any facts that would impose on him constructive notice of such claims.").

      OTA contends that arising from other circumstances about which Riverbend allegedly had actual knowledge, Riverbend had constructive notice of the OTA/Mamosa Deed or OTA's interest in the subject property. OTA sets out a number of "circumstances" it asserts should have prompted Riverbend to make further inquiry about whatever rights OTA might have in the subject property. Riverbend challenges the adequacy of the circumstances asserted by OTA as prompting or imposing a need for inquiry, and, among other things, denies it had knowledge of other circumstances raised by OTA. Assuming, without deciding, the rule of "implied notice" might defeat Riverbend's quest to quiet title in the subject property based on these alleged circumstances, what it may or may not have known and whether inquiries it made were "prudent"-i.e., were reasonable-involve questions of fact that are not properly considered on summary judgment. "Summary judgment is appropriate [only] when there is no dispute as to material facts or any inferences drawn from undisputed facts and the law favors the movant's claim or liability defeating defense." Vasek v. Bd. of Cnty. Comm'rs , 2008 OK 35, ¶ 10, 186 P.3d 928 (citation omitted). Consequently, we do not consider these circumstances for purposes of this appeal.

      "The fundamental rule of statutory construction is to ascertain the intent of the legislature," State v. Tate , 2012 OK 31, ¶ 7, 276 P.3d 1017 (citation omitted), "and that intent is first sought in the language of the statute," YDF, Inc. v. Schlumar, Inc. , 2006 OK 32, ¶ 6, 136 P.3d 656 (citation omitted). "Where the language of a statute is plain and unambiguous and its meaning clear and no occasion exists for the application of rules of construction, the statute will be accorded the meaning as expressed by the language" used. Berry v. State ex rel. Okla. Pub. Emps. Ret. Sys. , 1989 OK 14, ¶ 6, 768 P.2d 898 (citation omitted).

      Cf. Burgess v. Indep. Sch. Dist. No. 1 of Tulsa Cnty. , 1959 OK 37, ¶ 23, 336 P.2d 1077 ("The primary purpose of the recording statutes is to provide means for making public all claims of title and interests in real property. It is incumbent upon persons claiming such interests to see that their claim or interest is correctly described. Persons who wish to keep their interests in lands secret must do so at their own peril and not rely upon the cloak of the doctrine of constructive notice to protect such interests."). While principally concerned with the issue of the discovery rule and whether the statute of limitations had run on a claim by a grantor, the Oklahoma Supreme Court recently noted the object of the recording statutes
      is to require the public to act with the presumption that recorded instruments exist and are genuine. See, Lewis v. State , 32 Ariz. 182, 256 P. 1048 (1927). The object of the registry laws in providing recordation of an instrument is to afford "notice of its contents, and of all rights, title, and interest, legal or equitable, created by or embraced within it, to every person subsequently dealing with the subject matter whose interest or duty it is to make a search of the record." Conly v. Indus. Trust Co. , 27 Del. Ch. 28, 29 A.2d 601, 602 (1943). The statutory recording requirement for validity of an interest in real property provides notice to the public of a conveyance of or encumbrance on real estate and serves to protect both those who already have interests in land and those who would like to acquire such interests. C.F. Investments, Inc. v. Option One Mortg. Corp. , 163 N.H. 313, 42 A.3d 847 (2012).
      Calvert v. Swinford , 2016 OK 100, ¶ 13 n.23, 382 P.3d 1028. In Lewis , the Supreme Court of Arizona stated, "[t]he very fact that the state has specified an instrument may or shall be filed, registered, or recorded is evidence that in its public policy it deems it important enough for the general good of its citizens that a place and a manner be provided where the existence of the instrument may be established[.]" 256 P. at 1050 (emphasis added).

      The decisional law upon which OTA relies for its argument that the description "remaining portion of the grantors land" is a sufficient legal description does not address the constructive notice issue presented herein. In Janko v. State ex rel. Department of Highways , 1969 OK 79, 455 P.2d 681, the "remaining portion of the defendants' land" as a description of the real property sought to be condemned was not an issue, rather the issue was the amount in damages to which the defendants were entitled. Janko did not consider the adequacy of "the remaining portion of defendants' land" as a description of the real property for purposes of constructive notice to third parties. In State ex rel. Department of Highways v. Gosselin , 1972 OK 12, 493 P.2d 430, the issue of whether "remaining portion of [the property owner's] property" is sufficient for constructive notice was not raised. There the defendants sought compensation for the damage to their "remaining portion," but no issue was presented about what property constituted the "remaining portion." They also sought reverse condemnation and sought money damages for the condemnation of a particular acreage of easement; an issue the Court said was not before it on appeal. In Lloyd v. State , 1967 OK 99, 428 P.2d 261, another condemnation case, the issue was the adequacy of the description of the "remaining land" in a certified copy of excerpts from the minutes of a meeting of the Oklahoma State Highway Commission and whether the statutory requirements of the condemnation statutes had been met. That case, like the others offered by OTA, did not involve the adequacy of "remaining portion of [the property owner's] property" as providing constructive notice to a third party under 16 O.S. § 16.

      OTA relies on Smith v. Williams , 1928 OK 333, 132 Okla. 141, 269 P. 1067, wherein the Oklahoma Supreme Court explained:
      The rule seems to be well established in this state that the purchaser of real estate is not bound to take notice of registered liens or deeds created or executed by any person other than those through whom he is compelled to deraign his title. Perkins v. Cissell , [1912 OK 399, 32 Okla. 827] 124 P. 7 ; Reigel v. Wood , [1924 OK 113, 110 Okla. 279] 229 P. 556. In the latter case, it was said:
      "The grantee is not required to take notice of conveyances not within his chain of title or those conveyances through which the purchaser is not compelled to deraign his title." [Reigel , ¶ 2].
      Smith , ¶ 37. In Smith , the purported deed about which the defendants were asserted to have had notice was void. Id. ¶ 36. In Perkins , notice of ratification of a contract pertaining to certain real property was filed by one who was not the person from whom the plaintiff purchased that real property and was found to be outside the record chain of title of that property. 1912 OK 399, ¶ 3, 32 Okla. 827, 124 P. 7. In our view these cases do not stand for the proposition that a third party has constructive notice of conveyances of real property made by a common grantor that do not contain a legal description of the real property conveyed to the third party.

      See also 16 O.S. 2011 § 15 ("Except as hereinafter provided, no acknowledgment or recording shall be necessary to the validity of any deed, mortgage, or contract relating to real estate as between the parties thereto; but no deed ... shall be valid as against third persons unless acknowledged and recorded as herein provided. (emphasis added)). Cf. M. Merrill, Merrill on Notice, § 981, at 555 (1952) ("Another outgrowth of the chain of title requirement is the rule that ordinarily the record of an instrument relating to a particular tract does not impress one who subsequently deals with the title to another tract with notice of matters touching that title which appear in the document affecting the first tract.").

      As previously noted herein, we make no decision concerning actual or implied notice or about any other issue currently undetermined below.


source: Caselaw Access Project

license: Public Domain

text:
    Lydell Marcus WHITE, Petitioner on Review, v. Jeff PREMO, Superintendent, Oregon State Penitentiary, Respondent on Review.
    CC 11C24315 (SC S065188)
    Supreme Court of Oregon.
    Argued and submitted March 7, 2019, at the University of Oregon School of Law, Eugene, Oregon. May 31, 2019
    Ryan T. O'Connor, O'Connor Weber LLC, Portland, argued the cause and filed the briefs for petitioner on review.
    Paul L. Smith, Deputy Solicitor General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Aliza B. Kaplan, Lewis & Clark Law School, Portland, filed the brief for amici curiae Constitutional Law and Criminal Procedure Scholars.
    Alexander A. Wheatley, Fisher & Phillips, LLC, Portland filed the brief for amici curiae Lewis & Clark Law School's Criminal Justice Reform Clinic, Oregon Criminal Defense Lawyers Association, Oregon Justice Resource Center, Juvenile Law Center, and Phillips Black, Inc.
    Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, and Nelson, Justices, and Kistler and Brewer, Senior Justices pro tempore.
    WALTERS, C. J.
    In Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the United States Supreme Court determined that it is cruel and unusual punishment to sentence a juvenile to life without parole unless a court determines that the juvenile's crime does not reflect the " 'transient immaturity' " of youth, but instead, demonstrates that the juvenile is " 'the rare juvenile offender whose crime reflects irreparable corruption.' " Id. at 479-80, 132 S.Ct. 2455 (quoting Roper v. Simmons , 543 U.S. 551, 573, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) ). In this post-conviction proceeding, petitioner, a juvenile offender, contends that the 800-month sentence he is serving for a single homicide is the functional equivalent of life without parole and was imposed without a hearing that satisfied the procedural and substantive requirements of the Eighth Amendment. For the reasons that follow, we hold that petitioner is not procedurally barred from seeking post-conviction relief and that his sentence is subject to Miller 's protections. Because this record does not convince us that the sentencing court determined that petitioner's crime reflects irreparable corruption, we reverse the decisions of the Court of Appeals and the post-conviction court and remand to the post-conviction court for further proceedings.
    We begin our discussion with the fact that Miller was decided almost 20 years after petitioner and his twin brother, Laycelle, both then 15 years old, murdered an elderly couple. Petitioner was convicted of those murders in 1995, and he appealed to the Court of Appeals. That court affirmed without opinion, and this court denied review. State v. White (Lydell) , 139 Or. App. 136, 911 P.2d 1287, rev. den. , 323 Or. 691, 920 P.2d 550 (1996). In 1997, petitioner filed his first petition for post-conviction relief. The post-conviction court denied relief, and, on appeal, the Court of Appeals affirmed without opinion. This court again denied review. White v. Thompson , 163 Or. App. 416, 991 P.2d 63 (1999), rev. den. , 329 Or. 607, 994 P.2d 132 (2000). Later, petitioner filed a second petition for post-conviction relief, raising a claim under Blakely v. Washington , 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Then, in 2012, the United States Supreme Court decided Miller , and, in 2013, petitioner filed this petition for post-conviction relief. The superintendent responded with a motion for summary judgment, asserting that the petition was procedurally barred; the post-conviction court agreed and dismissed the petition. The Court of Appeals affirmed, and we allowed review. White v. Premo , 285 Or. App. 570, 397 P.3d 504 (2017), rev. allowed , 363 Or. 727, 429 P.3d 385 (2018).
    Three procedural barriers to post-conviction relief are relevant here: a statute of limitations, a claim preclusion limitation, and a successive petition limitation. ORS 138.510(3), 138.550(2), (3). The petition before us now is barred by all three of those procedural limitations, unless review is permitted by what we refer to as their "escape" clauses. Each of those escape clauses permit a petitioner to bring a claim that would be procedurally barred if the "grounds" on which the petitioner relies were not asserted and could not reasonably have been either asserted or raised in certain described circumstances. Petitioner argues that because Miller had not yet been decided when he filed his direct appeal and his earlier post-conviction claims, he did not assert and reasonably could not have asserted or raised the "grounds" on which he now relies in those earlier proceedings. The superintendent counters that the term "grounds" refers not to a particular legal argument, but to a general type of claim-here, a claim that a sentence imposes cruel and unusual punishment-and that petitioner asserted that type of claim on direct appeal and in his earlier post-conviction proceeding. Alternatively, the superintendent contends that, even if the term "grounds" contemplates more specificity, petitioner previously asserted a claim that was "close" to a Miller claim or reasonably could have asserted such a claim, and, therefore, his present claim is procedurally barred. As we will explain, two of our recent cases demonstrate that petitioner has the better argument.
    In the first case- Verduzco v. State of Oregon , 357 Or. 553, 355 P.3d 902 (2015) -this court considered whether the procedural bar against successive post-conviction petitions barred the petitioner's claim, and, in doing so, focused not on whether the petitioner had asserted the same general type of claim in both petitions, but, rather, on whether the petitioner had relied on the same legal rule to prove both claims of ineffective assistance of counsel. In his successive post-conviction petition, the petitioner relied on his lawyer's failure to give him the advice required by Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) : When the immigration consequences of pleading guilty to certain crimes are " 'truly clear,' " defense attorneys must advise their clients that deportation and other adverse immigration consequences will be " 'practically inevitable' " as a result of the plea. Verduzco , 357 Or. at 559, 355 P.3d 902 (quoting Padilla , 559 U.S. at 364, 369, 130 S.Ct. 1473 ). In his original petition, the petitioner did not cite Padilla because the Court had not yet decided that case, but the petitioner had alleged that his lawyer had failed to give him the very advice that the Court later required. Id. at 557-58, 355 P.3d 902. We concluded that the bar against successive petitions precluded the petitioner from relitigating a virtually identical claim. Id. at 573, 355 P.3d 902.
    In our most recent post-conviction case, Chavez v. State of Oregon , 364 Or. 654, 438 P.3d 381 (2019), this court followed a path similar to the one it took in Verduzco , but reached a different destination. In Chavez , the petitioner, like the petitioner in Verduzco , filed a petition for post-conviction relief based on Padilla . Id. at 656, 438 P.3d 381. The petitioner's claim was untimely, but he argued that the escape clause applied. Id. at 658-59, 438 P.3d 381. The petitioner argued that Padilla had not been decided until some 12 years after his conviction and that he reasonably could not have raised a Padilla claim in the time permitted by the statute. Id. We agreed and, in doing so, said that the petitioner reasonably could not have anticipated the "ground for relief" on which he later relied-the legal rule adopted in Padilla . Id. at 663, 438 P.3d 381. Thus, Chavez and Verduzco both demonstrate that, as used in the escape clauses in the Post-Conviction Hearings Act, the term "grounds" means the legal rule asserted as a basis for a claim, not the general nature of the claim.
    We therefore turn to the superintendent's alternative argument that, even though petitioner did not cite and could not have cited the Miller rule in his previous proceedings, he previously made claims that were "close"
    to Miller claims or reasonably could have asserted that legal rule. Consequently, the superintendent contends, the escape clauses do not permit his current claim. Again, Chavez and Verduzco answer the argument advanced.
    In Chavez , this court discussed the reason that it reached a different result in that case than it had in Verduzco .
    364 Or. at 661-63, 438 P.3d 381. We explained that, in Verduzco , the petitioner had "litigated a virtually identical Sixth Amendment claim at roughly the same time that Padilla was pursuing his claim"; Chavez , we said, "arises in a different posture." Id. at 662-63, 438 P.3d 381. In Chavez , the petitioner had never asserted a claim that was "virtually identical" to the claim that the Court later decided in Padilla , and we were not persuaded that a Padilla claim reasonably could have been raised within two years of the date that the petitioner's conviction became final-"five years before the petitioners in Verduzco and Padilla raised that claim." Id. at 663, 438 P.3d 381. In reaching that conclusion, we recognized that some litigants had raised Padilla -type claims before Padilla was decided, but we reasoned that the statutory question is not whether a claim conceivably could have been raised but, rather, whether it reasonably could have been raised. Id. The answer to that question, we explained, depends on where the legal rule that forms the basis for a claim lies in a continuum: "[W]hen the underlying principle is 'novel, unprecedented, or surprising,' and not merely an extension of settled or familiar rules, the more likely it becomes that the ground for relief could not reasonably have been asserted." Id.
    For the reasons that follow, we conclude that this case arises in the same posture as did Chavez . Like the petitioner in Chavez , petitioner relies on a rule articulated by the Supreme Court many years after petitioner's conviction, and petitioner did not previously litigate a "virtually identical" claim or do so "at roughly the same time" that the Supreme Court was considering that claim. And, we, like the court in Chavez , are not persuaded that petitioner reasonably could have raised a Miller claim within two years of his conviction or his later post-conviction proceedings.
    To explain why we reach that conclusion, it is necessary to briefly describe the state of the law before Miller was decided in 2012. See Chavez , 364 Or. at 659-61, 438 P.3d 381 (describing the state of the law before Padilla was decided). In 1988, a plurality of the United States Supreme Court explained in Thompson v. Oklahoma , 487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988), that "contemporary standards of decency" counsel against executing a person who was under 16 years of age at the time of his or her offense, and the Court thus held that the Eighth Amendment prohibited the practice. Id. at 823, 838, 108 S.Ct. 2687. A year later, in Stanford v. Kentucky , 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989), the Court also "referred to contemporary standards of decency in this country," but it reached a contrary conclusion with respect to the execution of juvenile offenders over 15 but under 18. Roper , 543 U.S. at 562, 125 S.Ct. 1183. In Stanford , the Court rejected arguments that the death penalty failed to serve the legitimate goals of penology because there was evidence that juveniles possess less developed cognitive skills than adults, are less likely to fear death, and are less mature and responsible, and therefore less morally blameworthy. 492 U.S. at 377-78, 109 S.Ct. 2969. Stanford remained the law until 12 years after petitioner's conviction and eight years after petitioner's first post-conviction petition, when in 2005, the Court decided Roper and held that the Eighth Amendment categorically prohibits states from putting juveniles to death. 543 U.S. at 578-79, 125 S.Ct. 1183.
    In Roper , the Court found persuasive certain scientific studies of the characteristics of juvenile offenders and recognized that juveniles typically possess three characteristics that make them different than adults and, consequently, less blameworthy: juveniles often are more impetuous and reckless; they often are more vulnerable to negative influences and peer pressure; and their traits are more transitory and less fixed. Id. at 569-70, 125 S.Ct. 1183. Accordingly, the Court reasoned, the penological justifications for the imposition of the death penalty have less force than they do when applied to adults, and, the Court concluded, a state cannot extinguish a juvenile's life and "potential to attain a mature understanding of his own humanity." Id. at 574, 125 S.Ct. 1183.
    The Court again considered the penological justifications for punishing juveniles in Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). The issue in Graham was whether juvenile offenders could be sentenced to life in prison without parole for nonhomicide crimes. Id. at 52, 130 S.Ct. 2011. Retribution, the Court said, "is a legitimate reason to punish," but must be directly related to the personal culpability of the offender and does not justify imposing the most severe penalty short of death on a juvenile nonhomicide offender who is less culpable than an adult offender, for the reasons set out in Roper . Id. at 71-72, 130 S.Ct. 2011. Moreover, the Court explained, the legitimate goal of deterrence is not a sufficient justification for imposing such a sentence on juveniles, because that punishment is rarely imposed and juveniles are less likely than adults to consider consequences before they act. Id. at 72, 130 S.Ct. 2011. Incapacitation for life "improperly denies the juvenile offender a chance to demonstrate growth" and "[t]he penalty forswears altogether the rehabilitative ideal." Id. at 73-74, 130 S.Ct. 2011. Accordingly, the Court adopted a categorical rule giving all juvenile offenders "a chance to demonstrate maturity and reform," prohibiting the imposition of a life without parole sentence on a juvenile offender who did not commit homicide. Id. at 79, 130 S.Ct. 2011.
    In Miller , the court considered whether juvenile offenders could be sentenced to life in prison without the possibility of parole for the crime of homicide. The court knit together two strands of precedent. 567 U.S. at 470, 132 S.Ct. 2455. From Roper and Graham , it took the principle that the Constitution categorically bans mismatches between the culpability of a class of offenders-juveniles-and the severity of a penalty. Id. From its death penalty cases, the Court took the principle that the sentencing authority must consider the individual characteristics of the defendant and the details of the offense before imposing that penalty. Id. Likening life without parole for juveniles to the death penalty, the Court then held that "the confluence of these two lines of precedent leads to the conclusion that mandatory life-without-parole sentences for juveniles violate the Eighth Amendment." Id. What is required, the Court explained, is individualized decision-making and a determination whether the juvenile offender who is being sentenced is typical of those juvenile offenders whose crime " 'reflects unfortunate yet transient immaturity,' " or whether the offender, instead, is " 'the rare juvenile offender whose crime reflects irreparable corruption.' " Id. at 479-80, 132 S.Ct. 2455 (quoting Roper , 543 U.S. at 573, 125 S.Ct. 1183 ). Although the Court did not foreclose a sentencer's ability to make that judgment in homicide cases, it required the sentencer "to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." Id. at 480, 132 S.Ct. 2455.
    Miller did not impose only a procedural rule, however. As the Court later explained in Montgomery v. Louisiana , --- U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), Miller "did more than require a sentencer to consider a juvenile offender's youth before imposing life without parole; it established that the penological justifications for life without parole collapse in light of 'the distinctive attributes of youth.' " Id. at ----, 136 S.Ct. at 734 (quoting Miller , 567 U.S. at 472, 132 S.Ct. 2455 ). Thus, the Court amplified, "[e]ven if a court considers a child's age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects 'unfortunate yet transient immaturity.' " Id. at ----, 136 S.Ct. at 734 (quoting Miller , 567 U.S. at 479, 132 S.Ct. 2455 ). Miller created a substantive rule that sentencing a child who has committed homicide to life without parole is excessive for all but the "rare" offender whose crime reflects irreparable corruption. Id. at ----, 136 S.Ct. at 734. Thus, Miller made a novel, unprecedented change in the law. "Before Miller , every juvenile convicted of a homicide offense could be sentenced to life without parole. After Miller , it will be the rare juvenile offender who can receive that same sentence." Montgomery , --- U.S. ----, 136 S.Ct. at 734.
    Understanding, then, the genesis of Miller , we return to the question of whether petitioner's claim is procedurally barred, either because he previously raised a Miller claim or because he reasonably could have anticipated and raised a Miller claim. On the first point, the superintendent contends that, in his direct appeal, petitioner raised a claim that was so "close" to a Miller claim that it constitutes a procedural bar to this proceeding. The superintendent is correct that, in his direct appeal, petitioner noted his age at the time of his offense as a reason why the court should find his sentence unconstitutional. However, the whole of petitioner's argument was as follows:
    "There can be no doubt that the crimes in this case were violent and offensive to society. However, defendant was only 15 at the time the crimes were committed and 17 at the time of sentencing. The philosophy of the juvenile criminal code should be one of rehabilitation and not vindictive justice. The sentence of 800 months imposed upon defendant was excessive, and for the reasons given, constituted cruel and unusual punishment."
    In his subsequent post-conviction proceeding, petitioner again raised the Eighth Amendment as a basis for relief, but he did not rely on Miller or the rule set out in Miller . In Chavez terms, we conclude that petitioner did not litigate "a virtually identical *** claim at roughly the same time that [Miller] was pursuing his claim." 364 Or. at 662, 438 P.3d 381.
    As to the superintendent's second point, we are not convinced that petitioner reasonably could have asserted a Miller claim at the time of his direct appeal or his earlier post-conviction proceeding. At those times, the Court had not yet held that juveniles typically possess traits that make them less blameworthy than adults, and certainly had not held that mandatory life-without-parole sentences for juveniles who commit homicide violate the Eighth Amendment. The state may be correct that, in the years preceding Miller , certain offenders were arguing that sentencing authorities must take their youth into consideration, but, under Chavez , the statutory question is not whether a claim conceivably could have been raised, but, rather, whether it reasonably could have been raised. Chavez , 364 Or. at 663, 438 P.3d 381. The rule that the Court articulated in Miller , in 2012, was sufficiently "novel, unprecedented, [and] surprising" that we cannot conclude that petitioner reasonably could have anticipated it within two years of his conviction in 1995 or at the time of his later post-conviction proceeding. See id. (describing Padilla ). We hold that petitioner's claim for post-conviction relief is not procedurally barred, and we turn to its merits.
    As noted, petitioner and his brother murdered an elderly couple. Petitioner was convicted of three crimes-aggravated murder of one of the victims, murder of the other victim, and first-degree robbery. On the aggravated murder charge, petitioner was sentenced to life in prison with the possibility of parole; on the murder charge, petitioner was sentenced to a determinate 800-month minimum sentence; and on the first-degree robbery charge, petitioner was sentenced to 36 months, to run consecutively to his sentence for murder. The 800-month sentence-almost 67 years-for the murder of one victim is the only sentence that petitioner challenges as violative of the Eighth Amendment. Petitioner will be 81 years old when he is released on that charge. Petitioner argues that, although that sentence was not explicitly a sentence to life without parole, it is a sentence that exceeds his life expectancy and is the functional equivalent of such a sentence and subject to the protections of Miller .
    The superintendent acknowledges that petitioner's sentence for murder is lengthy, but he argues that it does not violate the Constitution for three reasons. First, he argues, because petitioner was sentenced to a term of years and not to life, Miller does not apply. Second, the superintendent argues, even if some determinate sentences may be subject to Miller , petitioner's sentence is not so long as to make it certain that he will die in prison; in fact, the superintendent notes, petitioner is eligible for good-time credit and possibly other forms of relief that could reduce his nearly 67-year sentence to 54 years, permitting his release when he is 68 years old. See OAR 291-097-0215 (setting out rules for credits that reduce time of incarceration). Such a sentence, the superintendent contends, is not a sentence to which Miller applies. Finally, the superintendent argues, the sentencing court did not impose a mandatory sentence; it took petitioner's age into consideration and imposed a sentence that reflects the brutality of petitioner's crime-a crime that demonstrates that petitioner is irreparably corrupt.
    The superintendent's first point-that this court should not extend Miller to any term-of-years sentence, no matter how long, finds little support. In Miller , the Court stated that the Eighth Amendment "forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders" but then quoted from its decision in Graham : " 'A State is not required to guarantee eventual freedom,' " but it must provide " 'some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.' " 567 U.S. at 479, 132 S.Ct. 2455 (quoting Graham , 560 U.S. at 75, 130 S.Ct. 2011 ). Most courts that have considered the matter have understood the inquiry to focus, not on the label attached to a sentence, but on whether its imposition would violate the principles that the Court sought to effectuate. See e.g. , State v. Zuber , 227 N.J. 422, 446-47, 152 A.3d 197, 211-12, cert. den. , --- U.S. ----, 138 S.Ct. 152, 199 L.Ed.2d 38 (2017) ( Miller 's principles "appl[y] with equal strength to a sentence that is the practical equivalent of life without parole"); State v. Ramos , 187 Wash.2d 420, 438-39, 387 P.3d 650, 660, cert. den. , --- U.S. ----, 138 S.Ct. 467, 199 L.Ed.2d 355 (2017) (rejecting "notion that Miller applies only to literal, not de facto, life-without-parole sentences" because holding otherwise would contravene Miller 's core holding); People v. Caballero , 55 Cal.4th 262, 267-68, 282 P.3d 291, 294-95, 145 Cal.Rptr.3d 286 (2012) (applying Graham to 110 -year-to-life sentence for nonhomicide offenses); Casiano v. Comm'r of Corr. , 317 Conn. 52, 72-74, 115 A.3d 1031, 1043-45 (2015), cert. den. , --- U.S. ----, 136 S.Ct. 1364, 194 L.Ed.2d 376 (2016) ("[M]ost courts that have considered the issue agree that a lengthy term of years for a juvenile offender will become a de facto life sentence at some point[.]"); Henry v. State , 175 So.3d 675, 680 (Fla. 2015) (applying Graham to nonhomicide offender's aggregate sentence); Brown v. State , 10 N.E.3d 1, 8 (Ind. 2014) (applying Miller to juvenile offender's aggregate sentence of 150 years for murder and robbery); State v. Null , 836 N.W.2d 41, 71 (Iowa 2013) (determining that Miller applies to a "lengthy term-of-years sentence"); Bear Cloud v. State , 334 P.3d 132, 144 (Wyo. 2014) (holding that Miller applies to aggregate sentences that "result in the functional equivalent of life without parole"); see also Moore v. Biter , 725 F.3d 1184, 1191-92 (9th Cir. 2013) (determining that Graham 's focus "was not on the label of a 'life sentence'-but rather on the difference between life in prison with, or without, possibility of parole"). As the Court explained in Montgomery , Miller "did more than require a sentencer to consider a juvenile offender's youth before imposing life without parole; it established that the penological justifications for life without parole collapse in light of 'the distinctive attributes of youth.' " --- U.S. ----, 136 S.Ct. at 734 (quoting Miller , 567 U.S. at 472, 132 S.Ct. 2455 ). The superintendent does not cite any additional penological justifications for a sentence that is the functional equivalent of life, and we see no reason to treat such a sentence differently. Whether petitioner's sentence is, in fact, functionally equivalent to a life sentence is the next question we must answer. Here, as noted, petitioner's 800-month sentence would result in his release at age 81, and he argues that that is a de facto life sentence because his life expectancy is only 75-76 years. In making that argument, petitioner relies on the life expectancy of black males-a statistic from the Center for Disease Control-and the superintendent does not take issue with that measure. Instead, the superintendent cites regulations that demonstrate that petitioner may be released after serving 54 years of his sentence, at age 68, potentially giving him 7-8 years of life outside of prison.
    Courts that have grappled with the issue of how lengthy a sentence must be to trigger the protections of Miller often reference Graham 's instruction that juvenile offenders must retain a meaningful opportunity for release. See Null , 836 N.W.2d at 71-72 (explaining that it does "not regard the juvenile's potential future release in his or her late sixties after a half century of incarceration sufficient to escape the rationales of Graham or Miller "); Casiano , 317 Conn. at 74-75, 115 A.3d at 1044-45 (noting that most courts that have considered the issue have determined that a sentence that exceeds life expectancy or that would make the individual eligible for release near the end of her life expectancy is a de facto life sentence). In this case, the superintendent does not raise an objection to use of life expectancy tables to analyze that question, nor does he contest the particular table on which petitioner relies. However, other courts have pointed to "a tangle of legal and empirical difficulties" that arise in such an analysis. People v. Contreras , 4 Cal.5th 349, 361, 229 Cal.Rptr.3d 249, 411 P.3d 445, 449 (2018) ; see United States v. Grant , 887 F.3d 131, 149, reh'g granted , 905 F.3d 285 (3rd Cir. 2018) (discussing difficulties). Whether gender, race, or a juvenile's particular medical condition should be taken into consideration and, if so, how and when, are significant questions. So, too, is the question of how the opportunity to earn early release may factor into such a decision.
    We decline, however, to take up those questions here. First, the parties' briefing on those issues is scanty. The superintendent does no more than to state, summarily, and without case citation, that, with good-time credit, petitioner's sentence is not a sentence that offers "no hope or incentive for reformation." Second, even allowing for good-time credit, petitioner will serve at least 54 years and will be released, at the earliest, when he is 68 years old. We know of no state high court that has held that a sentence in excess of 50 years for a single homicide provides a juvenile with a meaningful opportunity for release. See Contreras , 4 Cal.5th at 369, 411 P.3d at 455 (citing cases and so noting). Given those particular circumstances, we conclude that petitioner's sentence is sufficiently lengthy that a Miller analysis is required. We do not mean to foreclose a future argument that a sentence in excess of 50 years would leave a particular juvenile offender with a meaningful opportunity for release. But in this case, that argument has not been developed. Accordingly, we turn to the superintendent's better-developed argument that petitioner's 800-month sentence was not mandatory, that the sentencing court in fact provided petitioner with the individualized sentencing process that Miller requires, and that the sentence it imposed was not excessive under Miller .
    The superintendent is factually correct in his observation that the 800-month sentence that the sentencing court imposed was not a mandatory sentence and that the court took petitioner's individual characteristics into consideration in imposing it. But, as noted, Miller did more than require that a trial court engage in individualized sentencing; it prohibited a trial court from irrevocably sentencing a juvenile to life in prison without determining that the juvenile is one of the "rare" offenders "whose crimes reflect irreparable corruption." Montgomery , --- U.S. ----, 136 S.Ct. at 734.
    As to that substantive limitation, the superintendent contends that, although the sentencing court did not use that precise phrasing, its rationale in sentencing petitioner, as well as its findings, are consistent with a determination that petitioner's criminal conduct resulted not from the transience of youth, but from his irreparable corruption. The superintendent argues that, as in Kinkel v. Persson , 363 Or. 1, 417 P.3d 401 (2018), the sentencing court in this case took petitioner's age and mental condition into consideration and nevertheless imposed a lengthy sentence. The court found that petitioner's crime was premeditated and particularly brutal, and society, the court said, could not "afford to take a chance" on petitioner "ever again."
    Before we discuss our decision in Kinkel , we think it important to note two aspects of the Supreme Court's ruling in Miller (as discussed in Montgomery ) that bear on our analysis. First, the fact that the trial court considered a juvenile's age in sentencing the juvenile does not mean that the sentence comports with Miller 's requirements. Montgomery , --- U.S. ----, 136 S.Ct. at 734 ("Even if a court considers a child's age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects 'unfortunate yet transient immaturity.' " (Quoting Miller , 567 U.S. at 479-80, 132 S.Ct. 2455.)). Second, the Court has instructed that only the "rare" juvenile who commits a homicide may be sentenced to life without parole. Id. As a general rule, when appellate courts find Miller applicable, they send challenges to the sentences imposed back to the sentencing court for reconsideration in light Miller . See id. at ----, 136 S.Ct. at 736-37 (remanding for petitioner to have opportunity to show his crime did not reflect irreparable corruption); Null , 836 N.W.2d at 76 (remanding to trial court to apply principles of Miller ); People v. Araujo , 2013 WL 840995, at *5 (Cal. Ct. App. Mar. 7, 2013) (same); State v. Simmons , 99 So.3d 28 (La. 2012) (per curiam) (same); Bear Cloud , 334 P.3d at 147 (same); see also Adams v. Alabama , --- U.S. ----, 136 S.Ct. 1796, 1796-97, 195 L.Ed.2d 251 (2016) (vacating the petitioner's sentence and remanding to state appellate court for further consideration in light of Montgomery ).
    As we will explain, Kinkel is an exception to that rule. As a preliminary matter, it is important to remember that, in Kinkel , there was a significant question about whether Miller applied at all to an aggregate sentence such as the sentence imposed in that case-approximately 112 years for four murders and 26 attempted murders. In affirming that sentence, this court determined that "the reasoning in Graham and Miller permits consideration of the nature and the number of a juvenile's crimes in addition to the length of the sentence that the juvenile received and the general characteristics of juveniles in determining whether a juvenile's aggregate sentence is constitutionally disproportionate." 363 Or. at 21, 417 P.3d 401. We indicated that a juvenile who intentionally commits four murders and 26 attempted murders may be subject to a greater sentence than a juvenile who commits a single homicide and that the sentencing court's determination that petitioner should serve 40 months for each classmate whom he shot with the intent to kill "reflects a legitimate interest in retribution that is proportionate to each attempted murder and results in a correspondingly proportionate aggregate sentence for all [the] petitioner's crimes." Id. at 23, 417 P.3d 401. We observed that it might be possible to uphold the petitioner's sentence based solely on the number and magnitude of his crimes; but, given the strength of the other evidence in the record, we demurred. Id. at 24, 417 P.3d 401. Instead, we upheld the petitioner's sentence because the record demonstrated that the petitioner is one of " 'the rare juvenile offender[s] whose crime reflects irreparable corruption,' " rather than "the transience of youth." Id. (quoting Miller , 567 U.S. at 479, 132 S.Ct. 2455 ).
    In reaching that conclusion, we relied on the fact that the sentencing court had held a six-day hearing at which it had considered evidence that the petitioner provided regarding his youth, his psychological profile, and his character. Id. at 27, 417 P.3d 401. We also relied on that court's specific findings that petitioner suffered from a mental disorder, confirmed by multiple mental health experts, that motivated him to commit his crimes and that his crimes reflected "a deep-seated psychological problem that will not diminish as [the] petitioner matures." Id. at 28, 417 P.3d 401. Those crimes, we concluded, were not only heinous, but no reasonable person could dispute that they reflected, not the transient immaturity of youth, but an " 'irretrievably depraved character.' " Id. (quoting Roper , 543 U.S. at 570, 125 S.Ct. 1183 ). The petitioner killed his father while he sat at the kitchen counter; killed his mother once she returned home from running an errand; and, the next day, went to his school and began shooting. He killed two classmates and intended to kill over two dozen more. Id.
    This case is different. Petitioner received a de facto life sentence for one murder as opposed to an aggregate life sentence for many more, and we cannot conclude that the trial court's decision reflects a determination that petitioner is one of the rare juvenile offenders whose crimes demonstrate irreparable corruption.
    To be sure, the trial court found that the crimes that petitioner committed were heinous. Petitioner planned for over a week to steal a car and obtained a weapon and wore gloves to do so. Petitioner was aware that he might murder someone in the process and sought out victims who would be unable to fight back-a couple in their 80s with significant health problems. When petitioner and his brother broke into their home, they brutally beat both victims, striking them with their fists and weapons. The trial court described that brutality in detail:
    "You and your brother beat these people for a long, long time until they were dead. Human beings are tough. *** It is very hard to kill a person with your fists and even with a club. It's brutal, it is ugly, it is noisy and there is a lot of screaming, it is messy, you yourself got covered with their gore and it goes on for a long, long time and you can stop at any point during the process, but you weren't overcome by the brutality or the gore or the horror of what you were engaged in.
    "*** [M]ost of us cannot even imagine the scene as messy and as gruesome as you participated in and yet you didn't stop, you kept on and on and after you found the car keys didn't fit, you went back *** and you continued to brutalize one of those individuals who wasn't yet dead."
    It does not appear, however, that the sentencing court in this case "[took] into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." Miller , 567 U.S. at 480, 132 S.Ct. 2455. The sentencing court recognized that petitioner lacked internal controls, but it expressed an inability to determine the cause of that inability. The court said,
    "I don't think you have the internal control to control your behavior. I don't know fully the reasons for that, perhaps some of it is genetic, perhaps some of it is the way your father treated your family. I'm sure some is related to your gang affiliation and your close involvement with that subculture, but ultimately the responsibility for our conduct, each of us, is ourselves. No matter the past, no matter the reasons, no matter the failures of the system to intervene earlier, to give more treatment at an earlier stage, no matter about anything else, you did what you did. And the simpl[e] matter is we can't afford to take a chance on you ever again."
    The court did not make a finding, as the sentencing court did in Kinkel , that petitioner's crime was motivated by an incurable psychological condition, but, instead, expressed its hope that petitioner would be rehabilitated. That rehabilitation, the court said, should occur "inside the walls [of prison] rather than outside the walls." This record does not convince us that the sentencing court reached the conclusion that petitioner is one of the rare juvenile offenders who is irreparably depraved or that no reasonable trial court could reach any other conclusion. Accordingly, we reverse the judgments of the lower courts barring petitioner's claim for post-conviction relief and remand to the post-conviction court for further proceedings.
    The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

      Duncan and Garrett, JJ., did not participate in the consideration or decision of this case.

      The petition filed in 2013 was an amended petition filed through counsel.

      ORS 138.510(3) provides:
      "(3) A petition pursuant to [the Post-Conviction Hearing Act (PCHA) ] must be filed within two years of the following, unless the court on hearing a subsequent petition finds grounds for relief asserted which could not reasonably have been raised in the original or amended petition:
      "(a) If no appeal is taken, the date the judgment or order on the conviction was entered in the register.
      "(b) If an appeal is taken, the date the appeal is final in the Oregon appellate courts.
      "(c) If a petition for certiorari to the United States Supreme Court is filed, the later of:
      "(A) The date of denial of certiorari, if the petition is denied; or
      "(B) The date of entry of a final state court judgment following remand from the United States Supreme Court."

      ORS 138.550 provides in relevant part:
      "(2) When the petitioner sought and obtained direct appellate review of the conviction and sentence of the petitioner, no ground for relief may be asserted by petitioner in a petition for relief under [the PCHA] unless such ground was not asserted and could not reasonably have been asserted in the direct appellate review proceeding. ***
      "(3) All grounds for relief claimed by petitioner in a petition pursuant to [the PCHA] must be asserted in the original or amended petition, and any grounds not so asserted are deemed waived unless the court on hearing a subsequent petition finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition. However, any prior petition or amended petition which was withdrawn prior to the entry of judgment by leave of the court, as provided in ORS 138.610, shall have no effect on petitioner's right to bring a subsequent petition."

      The superintendent's argument that our decision in Datt v. Hill , 347 Or. 672, 678, 227 P.3d 714 (2010), compels a contrary result is not persuasive. In Datt , this court considered the meaning of the term "grounds" and the phrase "grounds for relief" in other statutes included in the PCHA-ORS 138.530, which identifies the available "grounds" for post-conviction relief, and ORS 138.550, which describes the necessary components of a petitioner's claim. Id. at 677-79, 227 P.3d 714. We said that the legislature apparently used the term "grounds " in ORS 138.530(1) to refer to the types of claims a petitioner may assert, but that the legislature may have used that word or the phrase "grounds for relief" differently in ORS 138.550. Id. at 678-79, 227 P.3d 714. In Datt , we did not consider how the legislature used the word "grounds" in the escape clauses that are at issue here, and Verduzco and Chavez provide the relevant authority on that point.

      Appellant's Brief at 12-13, State v. White (Lydell) , 139 Or. App. 136, 911 P.2d 1287 (1996) (A87437).

      The superintendent does not cite any contrary authority.

      As petitioner notes, the Department of Corrections may or may not grant petitioner credits to reduce his sentence, and it may revoke the credits it awards. See OAR 291-097-0215(4) (permitting credit for compliance with case plan and appropriate institution conduct); OAR 291-097-0250 (bases for retracting credits); see also Pepper v. United States , 562 U.S. 476, 501 n. 14, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011) (noting that, under federal law, an award of good-time credit "does not affect the length of a court-imposed sentence" and is rather an "administrative reward" to provide incentive for compliance with institutional regulations); Bear Cloud , 334 P.3d at 136 n. 3 (declining to rely on good-time credit in analysis for whether sentence is de facto life sentence without parole).

      The superintendent does not cite such a case.

      The transcript of the sentencing hearing was not before the post-conviction court. Petitioner asks this court to take judicial notice of that transcript for purposes of determining whether petitioner's sentence complies with Miller . The superintendent also asks this court to take such notice, but he further requests that this court take notice of evidence and other records that were before the sentencing court when it sentenced petitioner. We will take judicial notice of the materials requested, see Eklof v. Steward , 360 Or. 717, 722 n. 4, 385 P.3d 1074 (2016) (taking judicial notice of case registers), though we note that we will not make a habit of taking judicial notice of the kinds of additional materials submitted by the superintendent. There are several determinations that would usually take place at the trial level before materials like that could be admitted.

      We are aware of only one court that has decided, after Montgomery , that Miller applies only to mandatory sentences-Jones v. Commonwealth , 293 Va. 29, 795 S.E.2d 705, cert. den. , --- U.S. ----, 138 S.Ct. 81, 199 L.Ed.2d 25 (2017). The court's statement in Jones may not have been necessary to its decision, see id. at 45, 795 S.E.2d at 714-15 (determining that principles of waiver were dispositive of the issue before the court), and the Fourth Circuit reached a contrary conclusion in a case that the United States Supreme Court is set to review. Malvo v. Mathena , 893 F.3d 265, 274 (2018), cert. granted , --- U.S. ----, 139 S.Ct. 1317, 203 L.Ed.2d 563 (2019).


text:
    Laycelle Tornee WHITE, Petitioner on Review, v. Jeff PREMO, Superintendent, Oregon State Penitentiary, Respondent on Review.
    CC 11C24240 (SC S065223)
    Supreme Court of Oregon.
    Argued and submitted March 7, 2019, at the University of Oregon School of Law, Eugene, Oregon. May 31, 2019
    Ryan T. O'Connor, O'Connor Weber LLC, Portland, argued the cause and filed the briefs for petitioner on review.
    Paul L. Smith, Deputy Solicitor General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Aliza B. Kaplan, Lewis & Clark Law School, Portland, filed the brief for amici curiae Constitutional Law and Criminal Procedure Scholars.
    Alexander A. Wheatley, Fisher & Phillips, LLC, Portland filed the brief for amici curiae Lewis & Clark Law School's Criminal Justice Reform Clinic, Oregon Criminal Defense Lawyers Association, Oregon Justice Resource Center, Juvenile Law Center, and Phillips Black, Inc.
    Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, and Nelson, Justices, and Kistler and Brewer, Senior Justices pro tempore.
    WALTERS, C. J.
    Along with his twin brother, Lydell, petitioner Laycelle White was charged with and convicted of aggravated murder and murder, receiving a sentence of life with the possibility of parole for the murder of one victim and an 800-month determinate sentence for the murder of the other. In a petition for post-conviction relief, petitioner argues that his 800-month sentence for one murder is a de facto sentence of life without parole that must comport with 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). Miller forbids a court from imposing a sentence of life without parole on a juvenile who commits a homicide, unless the homicide reflects the juvenile's irreparable corruption rather than the transient immaturity of youth. Id. at 479-80, 132 S. Ct. 2455. Petitioner argues that the record in this case, which was decided 17 years before Miller , does not establish that the trial court made the required "irreparable corruption" finding and that his sentence therefore is invalid. We agree and reverse the decisions of the Court of Appeals, White v. Premo , 286 Or. App. 123, 399 P.3d 1034 (2017), and of the post-conviction court, and remand to the post-conviction court for further proceedings.
    This case raises virtually the same issues that we decided today in Lydell's case. White v. Premo (S065188) , 365 Or. 1, 443 P.3d 597 (2019) ( White (Lydell) ). There, we determined that Lydell's petition for post-conviction relief was not procedurally barred, that Miller applies to de facto life sentences, and that, given the particular circumstances presented in that case, Lydell's 800-month determinate sentence for one murder was subject to Miller 's protections. Id. at 7, 9. The record in that case did not convince us that the sentencing court had reached the conclusion that Lydell was one of the rare juvenile offenders who is irreparably depraved and that no reasonable sentencing court could reach any other conclusion. Id. at 9. We therefore reversed the decision of the post-conviction court dismissing Lydell's petition and ordered that court to enter a judgment vacating his sentence and remanding to the sentencing court for further proceedings. Id. at 9.
    Here, the facts and arguments that the parties present on those issues are almost identical to those presented in Lydell's case, and we write only to discuss one distinction-the slight difference in the sentencing court's stated rationale for imposing an 800-month sentence.
    As it did in imposing Lydell's sentence, the sentencing court focused on the fact that petitioner must have appreciated "fully and vividly" what he was doing and "exactly the horror that was involved in the brutality" that he was inflicting. Although there was evidence in the record that petitioner suffers from a psychological disorder, the trial court did not find that petitioner suffers from any such disorder or that any such disorder motivated him to commit his crimes. Rather, the trial court explained that petitioner had had enough opportunities to learn how to control his behavior and that he had not been able to do so. The court further explained that it did not "know the reason for [petitioner's] problems" but that "it doesn't matter anymore." The court concluded that "the only thing left for us to do is to protect society from you, so that is my intent and firm desire."
    As in Lydell's case, the superintendent here has attempted to cast the record as comparable to the record in Kinkel v. Persson , 363 Or. 1, 28, 417 P.3d 401 (2018), where we determined that the petitioner's 112-year sentence complied with Miller because the trial court's findings demonstrated that the petitioner's crime did not reflect the transience of youth. But, as in Lydell's case, the superintendent's attempt falls short. See White (Lydell) , 365 Or. at ---- (distinguishing Kinkel ). It is true that petitioner's actions were heinous and brutal. And it is possible that, on remand, the sentencing court may find that petitioner is one of the rare juvenile offenders whose crimes reflect irreparable corruption. However, we are not persuaded that the sentencing court "[took] into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." Miller , 567 U.S. at 480, 132 S.Ct. 2455. We also are not persuaded that the sentencing court reached the conclusion that petitioner is one of the rare juvenile offenders who is irreparably depraved or that no reasonable sentencing court could reach any other conclusion. Accordingly, we reverse the decision of the lower courts and remand to the post-conviction court for further proceedings.
    The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

      Duncan and Garrett, JJ., did not participate in the consideration or decision of this case.

      Unlike his brother, Laycelle was not convicted of robbery.

      Petitioner's sentences would see him released at 81 years old.

      The transcript of the sentencing hearing was not before the post-conviction court. Petitioner asks this court to take judicial notice of that transcript for purposes of determining whether petitioner's sentence complies with Miller . The superintendent also asks this court to take such notice, but he further requests that this court take notice of evidence and other records that were before the sentencing court when it sentenced petitioner. We will take judicial notice of the materials requested, see Eklof v. Steward , 360 Or. 717, 722 n. 4, 385 P.3d 1074 (2016) (taking judicial notice of case registers), though we note that we will not make a habit of taking judicial notice of the kind of additional materials submitted by the superintendent. There are several determinations that would usually take place at the trial level before materials like that could be admitted.