Opinion
A164729
08-19-2020
David Kirkpatrick CASE, Petitioner-Appellant, v. Brad CAIN, Superintendent, Snake River Correctional Institution, Defendant-Respondent.
Lindsey Burrows and O'Connor Weber LLC filed the briefs for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jeff J. Payne, Assistant Attorney General, filed the briefs for respondent.
Lindsey Burrows and O'Connor Weber LLC filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jeff J. Payne, Assistant Attorney General, filed the briefs for respondent.
Before Lagesen, Presiding Judge, and DeVore, Judge, and Sercombe, Senior Judge.
LAGESEN, P. J. When petitioner was 17 years old, he pleaded no contest to two counts of aggravated murder and one count of sodomy in the first degree. For the aggravated murder convictions, he was sentenced under a mandatory sentencing scheme to two terms of life in prison for a minimum of 30 years, to be served concurrently. See ORS 163.105(1)(c) (1999), amended by Or. Laws 1999, ch. 59, § 31. After 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), which held that a mandatory life sentence without the possibility of parole is unconstitutionally disproportionate when imposed against a juvenile homicide offender without consideration of youth, petitioner petitioned for post-conviction relief. He alleged that, in light of Miller , his sentences for aggravated murder were cruel and unusual in violation of the Eighth Amendment to the United States Constitution, and that that claim was not untimely under ORS 138.510(3) because it was "based on a newly recognized retroactive constitutional right which was not reasonably available to petitioner until the time periods for seeking direct appeal and post-conviction relief had expired." The superintendent moved for summary judgment, and the post-conviction court granted the motion. The court reasoned that Miller did not apply because petitioner's sentence allowed the possibility of parole, and that petitioner's claim was also therefore time barred.
All references in this opinion to ORS 163.105 are to the 1999 version of the statute, which was in effect when petitioner was sentenced.
Petitioner appeals the post-conviction court's grant of summary judgment. He contends that his sentence under ORS 163.105(1)(c) is unconstitutional as applied to him because it does not afford him a "meaningful opportunity to obtain release" as required by Miller .
In supplemental briefing, the superintendent has withdrawn and waived his contention that the petition is untimely. See Palmer v. State of Oregon , 121 Or. App. 377, 379-80, 854 P.2d 955 (1993), aff'd in part on other grounds , 318 Or. 352, 867 P.2d 1368 (1994) (explaining that the post-conviction relief limitations period is not jurisdictional and is waivable by the superintendent). For that reason, we conclude that the post-conviction court's timeliness ruling does not supply a basis to affirm. The superintendent nevertheless contends, saliently, that (1) petitioner is not entitled to retroactive application of Miller because the portion of that rule that is applicable to petitioner under State v. Link , 297 Or. App. 126, 441 P.3d 664 (2019), is procedural rather than substantive, and (2) if Miller applies retroactively, the sentencing scheme in ORS 163.105(1)(c) cures any violation by providing petitioner with a meaningful opportunity for release as required by the federal constitution. On those bases, the superintendent urges us to affirm. Reviewing for legal error, we disagree with the superintendent on both points and, therefore, reverse. Eklof v. Steward , 360 Or. 717, 729, 385 P.3d 1074 (2016).
The superintendent also argues that Link was wrongly decided. We reject that contention without further discussion.
Our opinion in Hardegger v. Amsberry , 305 Or. App. 726, 473 P.3d 576 (2020), wholly disposes of this appeal. As in this case, the petitioner was a youth at the time that he committed felony murder. He received a mandatory sentence of life in prison with the possibility of release after a minimum of 25 years under ORS 163.115(5) (2001), and, after the decision in Miller , he sought post-conviction relief. Id . at 728, 473 P.3d at 579–80. The superintendent moved for summary judgment, which was granted, and, on appeal, the parties’ arguments were virtually identical to those before us here.
Although the sentencing provision in Hardegger is not the same as the one at issue here, the provision at issue here, ORS 163.105, was the same provision at issue in Link . For that reason, our reasoning in Hardegger applies with equal force here, though it (but not Link ) involved a different sentencing statute than the one in play here.
Responding to the same arguments before us now, we concluded that the portion of the rule articulated in Miller requiring consideration of an offender's youth at sentencing before imposing any of the state's "most severe" sentences is substantive, and therefore retroactively applies to post-conviction petitions. Id . at 734, 741-42, 473 P.3d at 583, 587 (citing Link , 297 Or. App. at 134, 441 P.3d 664 ). We also concluded that the statutory sentencing scheme did not provide the "meaningful substitute for consideration of youth" necessary to cure a Miller violation. Id. at 736, 473 P.3d at 584 ; see also Link , 297 Or. App. at 156 n. 5, 441 P.3d 664 (explaining that "Oregon's murder review hearing is not ‘extending parole eligibility’ in the manner contemplated by [ Montgomery v. Louisiana , ––– U.S. ––––, 136 S. Ct. 718, 736, 193 L. Ed. 2d 599 (2016) ], rather, it extends the chance to obtain parole eligibility" (emphasis in original)). We therefore conclude that petitioner is entitled to retroactive relief under Miller and Link on his contention that his sentence under ORS 163.105(1)(c) does not comport with the Eighth Amendment.
Reversed and remanded.