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reaching similar conclusion under Link II regarding sentence imposed on juvenile under ORS 163.105
Summary of this case from Gillette v. CainOpinion
A164729
09-09-2021
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 James, Judge, and Kamins, Judge.
PER CURIAM This post-conviction case is before us on remand from the Supreme Court for reconsideration in light of State v. Link , 367 Or. 625, 482 P.3d 28 (2021) ( Link II ). Case v. Cain , 368 Or. 206, 487 P.3d 400 (2021). Petitioner was a juvenile at the time of his offenses and is serving concurrent sentences under ORS 163.105(1)(c) (1999), amended by Or Laws 1999, ch. 59, § 31, on two convictions for aggravated murder. In our original opinion, we held that petitioner was entitled to post-conviction relief from his sentences under ORS 163.105(1)(c), ruling that those sentences violated petitioner's incorporated Eighth Amendment to the United States Constitution rights under Miller v. Alabama , 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), as interpreted by our court in State v. Link , 297 Or. App. 126, 441 P.3d 664 (2019) ( Link I ). Case v. Cain , 306 Or. App. 21, 24-25, 474 P.3d 415 (2020), vac'd. and rem'd. , 368 Or. 206, 487 P.3d 400 (2021). Specifically, we concluded that, under Link I , petitioner's sentences violated the Eighth Amendment because the sentencing scheme did not, in our view, allow for constitutionally adequate consideration of petitioner's youth. Id . In Link II , however, the Supreme Court disagreed with our analysis in Link I and held that sentences under ORS 163.105(1)(c), as applied to juvenile offenders, do not violate the Eighth Amendment under Miller . Link II , 367 Or. at 661-65, 482 P.3d 28. In view of Link II , our conclusion that petitioner's sentences are unconstitutional for failing to allow for constitutionally adequate consideration of petitioner's youth can no longer stand. See, e.g. , Carnahan v. Cain , 313 Or. App. 718, 492 P.3d 733 (2021) (reaching similar conclusion under Link II regarding sentence imposed on juvenile under ORS 163.115 ).
All references in this opinion to ORS 163.105 are to the 1999 version of the statute.
In his brief to us, petitioner raised one additional argument as to why his sentences violated the Eighth Amendment that we did not need to reach the first time this case was before us. He also contends that it violates the Eighth Amendment to sentence a juvenile to a mandatory minimum period of confinement (in this case, 30 years). As petitioner acknowledges, that argument is foreclosed by our decision in State v. Conrad , 280 Or. App. 325, 336-37, 381 P.3d 880 (2016), rev. den. , 360 Or. 851, 389 P.3d 1141 (2017), and we reject it for that reason.
Affirmed.