State v. Davilla

                                        742

    Argued and submitted September 10, 2018, reversed and remanded for
                       resentencing March 11, 2020


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                    TODD DANIEL DAVILLA,
                       Defendant-Appellant.
                  Clackamas County Circuit Court
                       CR9200004; A165390
                                    

     Defendant appeals a judgment of conviction for one count each of murder,
ORS 163.115, first-degree burglary, ORS 164.225, and attempted first-degree
rape, ORS 163.375; ORS 161.405. Defendant, who was 16-years-old when he murdered the victim, contends that the 600-month term of incarceration imposed by
the trial court violates the Eighth Amendment to the United States Constitution
based on the principles articulated by the United States Supreme Court in Roper
v. Simmons, 

, 

, 

 (2005), Graham v. Florida,

, 

, 

 (2010), Miller v. Alabama, 

,

, 

 (2012), and Montgomery v. Louisiana, ___ US ___,
___, 

, 

 (2016). Held: Because the sentencing court’s
decision did not reflect that it took “into account how children are different [than
adults], and how those differences counsel against irrevocably sentencing [defendant] to a [de facto] lifetime in prison,” the Court of Appeals concluded that defendant’s sentence violates the Eighth Amendment. Miller, 

.
    Reversed and remanded for resentencing.



    Eve L. Miller, Judge.
   Kendra M. Matthews argued the cause for appellant.
Also on the briefs was Boise Matthews LLP.
   Timothy A. Sylwester, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Frederick
M. Boss, Deputy Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Shorr, Judge.
    TOOKEY, J.
    Reversed and remanded for resentencing.
Cite as 

 (2020)                                             743

           TOOKEY, J.
         This case has a long history. Defendant appeals a
Fifth Amended Judgment of conviction for one count each of
murder, ORS 163.115, first-degree burglary, ORS 164.225,
and attempted first-degree rape, ORS 163.375; ORS 161.405,
that was entered following his most recent resentencing in
2017. We write only to address defendant’s fifth assignment
of error because defendant is entitled to resentencing based
on that error. In his fifth assignment of error, defendant,
who was 16-years-old when he murdered the victim, contends that the 600-month term of incarceration imposed
by the trial court violates the Eighth Amendment to the
United States Constitution based on the principles articulated by the United States Supreme Court in Montgomery v.
Louisiana, ___ US ___, 

, 

 (2016);
Miller v. Alabama, 

, 

, 

 (2012); Graham v. Florida, 

, 

,

 (2010); and Roper v. Simmons, 

,

, 

 (2005).1
         Because the sentencing court’s decision does not
reflect that it took “into account how children are different, and how those differences counsel against irrevocably
sentencing [defendant] to a [de facto] lifetime in prison,”
we conclude that defendant’s sentence violates the Eighth
Amendment. Miller, 

; see White v. Premo, 

, 

 (2019) (“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.”). Accordingly, we reverse and
remand for resentencing.
        The pertinent facts are mostly procedural and
undisputed. “Defendant was 16 years old on August 13,
1991, when he attempted to rape the victim and then murdered her, nearly decapitating her.” State v. Davilla, 

       The Eighth Amendment provides that “[e]xcessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.” The Due Process Clause of the Fourteenth Amendment to the United
States Constitution “makes the Eighth Amendment’s prohibition against …
cruel and unusual punishments applicable to the States.” Cooper Industries, Inc.
v. Leatherman Tool Group, Inc., 

, 

, 

 (2001).
744                                                          State v. Davilla

App 583, 585, 

, adh’d to on recons, 

, 

 (1993), rev den, 

 (1994). “He was
originally charged by petitions filed in juvenile court with
committing offenses which, if committed by an adult, would
constitute the crimes of aggravated murder (four counts),
murder (one count), burglary in the first degree (five counts)
and attempted rape in the first degree (two counts).” 

Given defendant’s age, the state moved to remand the case
from juvenile to circuit court and defendant “agreed not to
oppose remand and to plead guilty to murder, ORS 163.115
(1989), first-degree burglary, ORS 164.225 (1989), and first-degree attempted rape, ORS 161.405 (1989), ORS 163.375
(1989), in exchange for the state’s agreement not to prosecute him for aggravated murder.” State v. Davilla, 

, 

 (2016).
         Over the past 25 years, defendant has challenged
various aspects of the sentences that he has received for his
murder conviction on appeal, resulting in multiple resentencing hearings. We only discuss the facts that relate to
defendant’s most recent resentencing proceeding, because
the other proceedings are not germane to the issue that we
resolve in this appeal. See 

 (summarizing the
procedural history of this case).
        In this resentencing hearing, the parties agreed
that the presumptive guidelines sentence for defendant’s
murder conviction is 120-121 months’ imprisonment.2 In the
    2
      ORS 163.115(3) (1989) provided that a person convicted of murder “shall
be punished by imprisonment for life,” but also provided for eligibility for parole
or work release after 10 or 25 years. However, as we noted in one of defendant’s
previous appeals, “the Supreme Court held that as a result of legislative changes
in 1989, … a juvenile remanded to adult court cannot receive a mandatory minimum sentence or an indeterminate sentence for life” under ORS 163.115 (1989).
State v. Davilla, 

, 

 (1998), rev den, 

(2002) (citing State v. Morgan, 

, 

 (1993), State v. Jones,

, 

 (1992)). Accordingly, we have directed the sentencing court in this case “to impose sentence under the guidelines.” Id. at 645.
    Under the sentencing guidelines, defendant’s presumptive sentence is 120-
121 months’ imprisonment because his murder conviction had a crime seriousness level of “11” and he had a criminal history score of “I.” Furthermore, prior
to 1993, the 200% rule that caps upward departures to no “more than double the
maximum duration of the presumptive prison term” did not apply to defendant’s
murder conviction. OAR 253-08-003(2) (1993); see OAR 253-08-004(2) (1989)
(“The limit on durational departures … does not apply to any sentence imposed
for a conviction of ORS 163.115 Murder.”); Davilla, 

, 647 n 9
Cite as 

 (2020)                                             745

state’s sentencing memorandum, it argued that the sentencing court could impose a 600-month upward departure sentence under the sentencing guidelines “based on the ‘dangerous weapon’ aggravating factor,” because the use of the
“weapon made the circumstances of this case so exceptional
that the presumptive sentence would not accomplish the
purposes of the guidelines.”
         In response, defendant argued that “the state ha[d]
not demonstrated a substantial and compelling basis to
depart based on defendant’s use of a dangerous weapon in an
intentional murder,” because “defendant’s use of a dangerous
weapon to commit an intentional murder is not exceptional.”
Defendant also contended, among other points, that a 600-
month sentence would violate the Eighth Amendment, and
that the court must take into consideration the expert testimony that he presented about the mitigating qualities of
his youth at the time that he committed the murder and the
evidence that he presented demonstrating his good conduct
and efforts at rehabilitation while incarcerated under the
reasoning articulated by the Supreme Court in Miller, 

. Defendant, pointing to Montgomery, ___ US at ___,

, also noted that the Court has reiterated
“that children who commit even heinous crimes are capable
of change,” and, thus, juveniles whose crimes were a product
of their youth must be given a meaningful opportunity for
release.
         The sentencing court imposed the 600-month sentence, finding that “the state has proven [beyond a reasonable doubt that] the use of a weapon provides a substantial
and compelling reason to depart,” and it made extensive
findings concerning the horrific details surrounding defendant’s use of the knife during the murder to explain why
that factor justified an upward departure. The court also
rejected defendant’s argument that a 600-month sentence is
an unconstitutional punishment.3

(discussing how “[t]he limitations on departures for murder continue to be in
existence today for crimes committed after November 1, 1993,” but noting that
there is a constitutional “ceiling on the sentence that the court can impose” on
defendant under the guidelines because the 200% rule does not apply).
    3
      After the court pronounced that it would impose the 600-month sentence,
defendant argued that “[t]he court’s ruling also amounts to a ruling that this
746                                                            State v. Davilla

         On appeal, in his opening brief, defendant cited the
principles of transient immaturity and rehabilitation that
the Supreme Court stressed in Roper, Graham, Miller, and
Montgomery to support his argument that the 600-month
sentence should be reversed because “defendant is precisely
the type of juvenile offender envisioned by these cases.”
Defendant then filed a supplemental memorandum of additional authorities, observing that the Oregon appellate
courts have discussed Miller extensively and applied those
principles in White, 

, and State v. Link, 

, 

, rev allowed, 

 (2019). Defendant
contends that, pursuant to the principles and reasoning
discussed in those cases, we “should conclude that, before
imposing such an extraordinarily long term, the trial court
was required to give due consideration to the science supporting the conclusions underpinning Miller and, demonstrably, engage in a Miller analysis.”4
         We only briefly point out some of the case law underlying Miller here, because recent Oregon appellate court
decisions have discussed the genesis of Miller at length.
See White, 

 (discussing “the genesis of Miller”
and “the state of the law before Miller was decided in 2012”
(citing Roper, 

 (observing that differences
juvenile offender cannot do anything as a practical matter to demonstrate rehabilitation because of the acts he took as a juvenile,” and that “that … conclusion
is [inconsistent] with the … United States Supreme Court directive that we
have that juveniles can be rehabilitated.”
     4
       In defendant’s last appeal, we declined to address defendant’s argument that
the same 600-month sentence was unconstitutional under Article I, section 16,
of the Oregon Constitution, and the Eighth Amendment given our need to remand
for resentencing on other grounds. We do so now in light of the novel developments in constitutional law that limit the availability of sentences that do not
provide juvenile offenders a “meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation” to the “rare juvenile offender whose
crime reflects irreparable corruption.” Miller, 

 (internal quotation marks omitted); see White, 

 (concluding that the petitioner was
not procedurally barred from raising his Miller claim in a successive petition for
post-conviction relief because the “rule that the Court articulated in Miller, in
2012, was sufficiently novel, unprecedented, and surprising” (internal quotation
marks and brackets omitted)). Although the trial court here had the benefit of the
United States Supreme Court’s case law at issue when it resentenced defendant,
it did not have White or Link, and, therefore, did not have all of the precedent
on which we rely for accepting defendant’s premise that Miller applies to sentences other than mandatory true-life sentences. It is in significant part because
of those changes in, and subsequent application of, that constitutional law that
the trial court needs to reconsider defendant’s sentence.
Cite as 

 (2020)                                747

between juvenile offenders and adults render juvenile offenders less blameworthy due to “[t]he susceptibility of juveniles
to immature and irresponsible behavior,” and concluding
that the Eighth Amendment prohibits the imposition of the
death penalty on juvenile offenders because the penological
justifications for the imposition of the death penalty apply
with less force to juvenile offenders); Graham, 

 (discussing the penological justifications for sentencing juvenile nonhomicide offenders to life without parole,
and concluding that the Eighth Amendment categorically
prohibits such a sentence because it deprives those juvenile offenders of the “chance to demonstrate maturity and
reform”)); see also Link, 

 (discussing
the Supreme Court’s observations in Roper and Graham
about the differences between juveniles and adults).
         In Miller, the Court concluded that a juvenile homicide offender could be sentenced to life without parole, but
the sentencer had “to take into account how children are
different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” 

. The Court explained that, “given all we have
said in Roper, Graham, and this decision about children’s
diminished culpability and heightened capacity for change,
we think appropriate occasions for sentencing juveniles to
this harshest possible penalty will be uncommon,” because
such a sentence should be reserved only for “the rare juvenile offender whose crime reflects irreparable corruption.”

 (internal quotation marks omitted); see also Montgomery,
___US at ___, 

 (explaining that 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’ ” (quoting
Miller, 

).
         In White, when the petitioner and his brother were
15-years-old they beat a vulnerable elderly couple in their
80’s to death by striking them with their fists and weapons. 

. The petitioner petitioned for post-conviction relief, arguing that the 800-month determinate
sentence that the court had imposed for the murder of one
of the victims is a de facto life sentence that “is subject to
748                                            State v. Davilla

Miller’s protections.” 

. The post-conviction court dismissed the petition on procedural grounds, and we affirmed.

. The Oregon Supreme Court first concluded that
petitioner’s petition for post-conviction relief was not barred
on procedural grounds and then it turned to the merits. The
court rejected the superintendent’s argument that the court
“should not extend Miller to any term-of-years sentence, no
matter how long.” 

. The court observed that other
“[c]ourts 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,
e.g., State v. Null, 

 (Iowa 2013) (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 v. Comm’r of Corr., 317 Conn 52, 79, 115
A3d 1031 (2015), cert den, ___ US ___, 

 (2016)
(concluding that “the procedures set forth in Miller must be
followed when considering whether to sentence a juvenile
offender to fifty years imprisonment without parole”).
         The court in White then pointed out that it was
unable to find any “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.” 

 at 15
(citing People v. Contreras, 4 Cal 5th 349, 369, 

(2018) (citing cases and noting that “we are not aware of any
state high court that has found incarceration of a juvenile
for 50 years or more before parole eligibility to fall outside
the strictures of Graham and Miller”)). Consequently, the
court concluded that “[p]etitioner received a de facto life sentence for one murder” and, because it did not appear that the
trial court considered how children are different, the court
could not “conclude that the trial court’s decision reflect[ed]
a determination that petitioner [wa]s one of the rare juvenile offenders whose crimes demonstrate[d] irreparable corruption.” Id. at 18-20. Accordingly, the court reversed and
remanded. Id. at 20.
         Here, based on the reasoning and the cases cited
by the court in White, we conclude that defendant’s sentence
of 600-months’ imprisonment—50 years—is a de facto life
Cite as 

 (2020)                                               749

sentence, such that a Miller analysis was required to be
undertaken by the sentencing court. See White, 

 (citing Null, 

 (a sentence that releases
the juvenile offender “in his or her late sixties after a half
century of incarceration” is subject to the rationales of
Graham and Miller); Casiano, 317 Conn at 79, 115 A3d at
1048 (“Miller must be followed when considering whether
to sentence a juvenile offender to fifty years imprisonment
without parole.”)).
          Moreover, as in White, in this case the sentencing
court found that defendant’s crimes were heinous, and it
focused almost exclusively on the nature of the crimes to
justify the imposition of a 600-month sentence. However,
this record does not convince us that, in crafting that sentence, the sentencing court’s decision reflects a determination that defendant is one of the rare juvenile offenders who
is so irreparably corrupt and incapable of rehabilitation that
he deserves to be deprived of any meaningful life outside of
prison walls. See Montgomery, ___US at ___, 136 S Ct at 736
(discussing “Miller’s central intuition—that children who
commit even heinous crimes are capable of change”).
         In sum, defendant has spent nearly 30 years of his
life behind bars and, by all accounts on this record, has been
a model prisoner. After 50 years, defendant will be released
and in his late 60’s. The record before us does not convince us
that the court considered the evidence presented about the
unique qualities of youth and whether defendant is “capable
of change.” Id.; see Link, 

 (concluding
that a “court cannot impose the state’s most severe penalties
on a juvenile offender without regard for the unique qualities of youth that might make imposition of that sentence
inappropriate”).
         Because the sentencing court’s decision does not
reflect that it took “into account how children are different, and how those differences counsel against irrevocably
sentencing [defendant] to a [de facto] lifetime in prison,”
we conclude that defendant’s sentence violates the Eighth
Amendment. Miller, 

.5 Accordingly, we
    5
       We also note that our conclusion in this case is consistent with state legislation, Senate Bill (SB) 1008 (2019), that was enacted in the wake of Miller.
750                                                         State v. Davilla

reverse defendant’s 600-month sentence and remand for
resentencing.
           Reversed and remanded for resentencing.




See Or Laws 2019, ch 634, §§ 24, 25 (prohibiting life sentences without parole
for juvenile offenders, requiring the court to consider the specific attributes of
youth, and providing for parole eligibility after a juvenile has served 15 years of
imprisonment). However, the Legislative Assembly subsequently passed Senate
Bill (SB) 1005 (2019), which excluded those juveniles whose cases are remanded
for a new trial or resentencing. See SB 1005 (2019) (“[S]ections 24 and 25, chapter
634, Oregon Laws 2019 (Enrolled Senate Bill 1008) … do not apply to persons
who were originally sentenced before January 1, 2020, and who are subsequently
resentenced on or after January 1, 2020, as the result of an appellate decision or
a post-conviction relief proceeding or for any other reason.”).