Hardegger v. Amsberry

                                      726

       Argued and submitted December 2, 2019, reversed and remanded
                             August 12, 2020


               BRIAN JOSEPH HARDEGGER,
                     Petitioner-Appellant,
                               v.
                     Brigitte AMSBERRY,
                       Superintendent,
            Eastern Oregon Correctional Institution,
                    Defendant-Respondent.
                Umatilla County Circuit Court
                     16CV31299; A165761
                                   

     In 2001, when petitioner was a youth, he committed felony murder. Under
Measure 11, he was tried as an adult and received a mandatory sentence of life in
prison, with a minimum of 25 years to be served before any possibility for release.
In 2012, the United States Supreme Court held that a mandatory life sentence
without parole is unconstitutionally disproportionate when imposed against a
juvenile homicide offender without consideration of youth. Miller v. Alabama,

, 

, 

 (2012). More recently, in State v.
Link, 

, 

, rev allowed, 

 (2019), the Court of
Appeals held that, under Miller, the state cannot impose a life sentence with a
30-year minimum term without consideration of youth at the time of sentencing.
Petitioner invokes those precedents in this successive petition for post-conviction
relief. He appeals a judgment that dismissed his petition, challenging the post-conviction court’s rulings (1) that his claim is procedurally barred under ORS
138.510 and ORS 138.550 and (2) that his sentence is constitutional. Held: As to
the first ruling, the Court of Appeals accepted the superintendent’s concession of
error. As to the second, Miller and Link establish a rule that is retroactive and
renders petitioner’s sentence, in the manner imposed, impermissible.
    Reversed and remanded.



    Daniel J. Hill, Judge.
   Jason Weber argued the cause for appellant. Also on the
briefs was O’Connor Weber LLC.
   Jeff J. Payne Assistant Attorney General, argued the
cause for respondent. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
Cite as 

 (2020)                           727

  DeVORE, P. J.
  Reversed and remanded.
  Mooney, J., concurring in part, dissenting in part.
728                                   Hardegger v. Amsberry

        DeVORE, P. J.

         In 2001, when petitioner was a youth, he committed felony murder. Under Measure 11, he was tried as an
adult and received a mandatory sentence of life in prison,
with a minimum of 25 years to be served before any possibility for release. In 2012, the United States Supreme
Court held that a mandatory life sentence without parole is
unconstitutionally disproportionate when imposed against
a juvenile homicide offender without consideration of youth.
Miller v. Alabama, 

, 

, 

 (2012). More recently, in State v. Link, 

,

, rev allowed, 

 (2019), we held that,
under Miller, the state cannot impose a life sentence with
a 30-year minimum term without consideration of youth at
the time of sentencing.

         Petitioner invokes those precedents in this successive petition for post-conviction relief. He appeals a judgment that dismissed his petition, assigning error to the
trial court’s decision to grant the superintendent’s motion
for summary judgment. Among other things, he challenges
the post-conviction court’s rulings (1) that his claim is procedurally barred under ORS 138.510 and ORS 138.550 and
(2) that his sentence is constitutional. As to the first ruling,
we accept the superintendent’s concession of error. As to the
second ruling, we conclude that Miller and Link establish
a rule that is retroactive and renders his sentence, in the
manner imposed, impermissible. Accordingly, we reverse
and remand.

                     I. BACKGROUND

         The relevant facts are procedural and not in dispute. In 2001, when petitioner was 17, he and his father
killed his mother. Petitioner was charged with aggravated murder, ORS 163.095, first-degree kidnapping, ORS
163.235, and felony murder, ORS 163.115(1)(b). In 2002,
petitioner stipulated that the state could produce evidence
to prove beyond a reasonable doubt that he committed felony murder; the court found him guilty of felony murder;
and other charges were dismissed. Petitioner received a
Cite as 

 (2020)                                                 729

mandatory sentence of life in prison. ORS 163.115(5)(a)
(2001).1
         As Oregon’s statutory scheme required at the time,
petitioner was automatically prosecuted as an adult without a hearing to waive proceedings in juvenile court. See
ORS 137.707 (2001), amended by Or Laws 2019, ch 634,
§ 5 (requiring prosecution as an adult for certain offenses
involving defendants who were 15, 16, or 17 years of age at
the time of the alleged offense). After serving 25 years, he
could petition to have his life sentence converted into one
eligible for parole or other release. ORS 163.115(5)(b), (c)
(2001). The law denied him consideration in a second-look
hearing, in which a court would have considered him for
conditional release based on his juvenile status at the time
of the offense. See ORS 420A.203(1)(a) (2001), amended by
Or Laws 2019, ch 634, § 22 (eligibility for second look).
         Petitioner appealed his conviction, and we affirmed
without opinion in 2004. State v. Hardegger, 

,

, rev den, 

 (2004). In 2005, he filed a
petition for post-conviction relief, which was denied.2
        Seven years later, the United States Supreme Court
decided that sentences of life imprisonment without parole
for homicide offenses are unconstitutionally excessive for all
but “the rare juvenile offender whose crime reflects irreparable corruption.” Miller, 

. The court later
determined that the ruling in Miller represented a substantive rule of constitutional law, albeit with a procedural
requirement, which states must give retroactive effect in
the case of a sentence of life without parole. Montgomery v.

    1
      ORS 163.115 has seen multiple revisions since the relevant events in this
case, none of which affect our analysis. Or Laws 2007, ch 717, § 2; Or Laws 2009,
ch 660, § 7; Or Laws 2009, ch 785, § 1; Or Laws 2011, ch 291, § 1; Or Laws 2015,
ch 820, § 46; Or Laws 2019, ch 634, § 28. We refer to the 2001 version throughout
this opinion.
    2
      Petitioner’s direct appeal challenged the denial of his motion to transfer his
case to juvenile court, based on the statute’s mandate to try him as an adult; he
argued that the statute violated federal due process and equal protection when
trying a youth as an adult. However, neither his direct appeal nor his prior post-conviction petition challenged the constitutionality of his sentence due to the
court’s failure to consider his youth in sentencing as a violation of the Eighth
Amendment.
730                                               Hardegger v. Amsberry

Louisiana, ___ US ___, ___, 

, 

 (2016).
         Citing those decisions, petitioner filed this successive petition for post-conviction relief in 2017, asserting,
among other things, that his sentence violates the Eighth
Amendment to the United States Constitution. The superintendent moved for summary judgment, and the court
granted the motion. The court entered judgment dismissing the petition. Petitioner now appeals, assigning error to
the decision to grant summary judgment. In relevant part,
petitioner argues that the court erred in concluding (1) that
his claim is procedurally barred and does not satisfy the
escape-clause exceptions of ORS 138.510 and ORS 138.550;
and (2) that his sentence does not contravene Miller due to
the possibility for parole after serving 25 years in prison.3
                      II. PROCEDURAL BARS
         We agree that petitioner’s claim satisfies the escape
clauses of ORS 138.510(3) and ORS 138.550(3) and is not
procedurally barred.4 In light of a recent decision from
the Oregon Supreme Court, the superintendent concedes
petitioner’s first assignment of error, and we consider that
concession to be appropriate. See White v. Premo, 

,
     3
       Petitioner also argues that the post-conviction court erred in granting the
superintendent’s motion for summary judgment based on reasons raised for the
first time in a reply memorandum. We reject those arguments without discussion.
     4
       Those two provisions “contain identically worded ‘escape clauses.’ ” Verduzco
v. State of Oregon, 

, 

 (2015). ORS 138.510(3) provides:
         “A petition pursuant to ORS 138.510 to 138.680 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:
         “…
         “(b) If an appeal is taken, the date the appeal is final in the Oregon
     appellate courts.”
ORS 138.550(3) provides:
         “All grounds for relief claimed by petitioner in a petition pursuant to ORS
     138.510 to 138.680 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.”
Cite as 

 (2020)                                                 731

11, 

 (2019), cert dismissed sub nom, Kelly v.
White, ___ US ___, 

, 

 (2020)
(a petitioner could not have reasonably asserted a claim
under Miller before the decision, because the United States
Supreme 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”).5
                           III.    ARGUMENTS
          Petitioner argues that, in light of Miller, the Eighth
Amendment requires that, in order for a sentence of life in
prison to be constitutionally imposed on a youth, the sentencing court must consider how youth differ from adults
and how those differences counsel against sentencing them
to a lifetime in prison. Petitioner also argues that the life
sentence must provide a juvenile offender some meaningful opportunity for release upon rehabilitation to reflect the
fact that youth are capable of change. Petitioner asserts
that Oregon’s sentencing scheme fails to comport with that
constitutional mandate. He complains that ORS 163.115(5)
(2001) requires the sentencing court to impose a sentence of
life in prison without any opportunity to consider the offender’s age and the nature of youth.6 Petitioner acknowledges
    5
      The superintendent does not argue that a petitioner may become timebarred if he fails to bring a claim within a certain time after the announcement
of a new substantive constitutional rule. We do not address a limitations issue
that the arguments and briefing fail to present. See Palmer v. State of Oregon, 

, 

 (1993), aff’d, 

, 

 (1994)
(declining to address the state’s statute of limitations defense where the state
waived it by failing to raise it below, noting that ORS 138.510 “is not a limitation
on the jurisdiction”).
    6
      ORS 163.115(5) (2001) provides:
        “(a) A person convicted of murder, who was at least 15 years of age at the
    time of committing the murder, shall be punished by imprisonment for life.
        “(b) When a defendant is convicted of murder under this section, the
    court shall order that the defendant shall be confined for a minimum of 25
    years without possibility of parole, release to post-prison supervision, release
    on work release or any form of temporary leave or employment at a forest or
    work camp.
        “(c) At any time after completion of a minimum period of confinement
    pursuant to paragraph (b) of this subsection, the State Board of Parole and
    Post-Prison Supervision, upon the petition of a prisoner so confined, shall
732                                              Hardegger v. Amsberry

that the statute provides a murder review hearing—a mechanism for converting a life sentence into a life sentence with
the possibility of parole. He argues, however, that the procedure is inadequate because it merely provides the opportunity for an inmate to show that he is likely to be rehabilitated within a reasonable amount of time, such that he
may then be eligible for parole in the future. That showing,
he says, merely creates the possibility of converting his life
sentence to a life sentence with the possibility of parole. See
ORS 163.115(5)(d) (2001) (conversion if unanimous vote of
board). In his view, the murder review hearing is not, in and
of itself, an opportunity for parole. Moreover, petitioner says,
the murder review hearing cannot occur for 25 years, long
after the offender has reached adulthood. For those reasons,
petitioner concludes, Oregon’s scheme involving juvenile
offenders violates the Eighth Amendment.
         The superintendent responds that petitioner’s sentence does not violate the Eighth Amendment, because it
provides the possibility of a sentence with parole. The superintendent argues, therefore, that petitioner did not receive a
life sentence without parole as in Miller. The superintendent
argues that, given that possibility of parole, the life sentence
is not truly a mandatory sentence of life without parole. The
superintendent explains that, if the inmate makes the proper
showing at the murder review hearing, the State Board of
Parole and Post-Prison Supervision may convert the life sentence into life imprisonment with the possibility of parole. The
superintendent observes that, once the board has converted
the terms of confinement, it must set a release date for the
inmate and, when that release date arrives, the inmate shall

   hold a hearing to determine if the prisoner is likely to be rehabilitated within
   a reasonable period of time. The sole issue shall be whether or not the prisoner is likely to be rehabilitated within a reasonable period of time. …
       “…
       “(d) If, upon hearing all of the evidence, the board, upon a unanimous
   vote of all of its members, finds that the prisoner is capable of rehabilitation
   and that the terms of the prisoner’s confinement should be changed to life
   imprisonment with the possibility of parole, release to post-prison supervision or work release, it shall enter an order to that effect and the order shall
   convert the terms of the prisoner’s confinement to life imprisonment with the
   possibility of parole, release to post-prison supervision or work release and
   may set a release date. Otherwise, the board shall deny the relief sought in
   the petition.”
Cite as 

 (2020)                             733

be released, absent statutorily-specified findings. The superintendent disagrees that Oregon’s process denies petitioner
a meaningful opportunity for release, adding that a superintendent need not actually guarantee eventual freedom.
         After the parties filed their briefs in this case, we
decided Link, 

. Petitioner now contends that
Link resolves this case. He argues that Link followed Miller
and concluded that a life sentence under ORS 163.105 violates the Eighth Amendment when imposed against a juvenile without consideration of youth at the time of sentencing. Petitioner argues that he was subject to a sentencing
scheme under ORS 163.115 (2001) that was nearly identical: he was automatically tried as an adult; potential sentences for his crime were essentially the same; he received
a life sentence—albeit with a murder-review hearing after
25, rather than 30 years; and he cannot receive a second-look hearing. Petitioner argues that, as in Link, the murder
review hearing is too little too late; it cannot replace a process that considers youth at the time of sentencing, and it
provides no meaningful opportunity to show rehabilitation.
Petitioner concludes that our holding in Link demonstrates
that his sentence was unconstitutional.
         The superintendent counters that Link relied on
a procedural rule from Miller that is not retroactive under
Teague v. Lane, 

, 

, 

(1989). The superintendent argues that the rule is inapplicable to petitioner, whose conviction became final eight years
before Miller. Petitioner responds that Montgomery rejected
the argument that Miller was not retroactive. He argues
that, although Miller contains a procedural component, the
rule it announced was substantive, retroactive, and binding
on state courts. He concludes that Miller, as applied in Link,
controls in this case, too.
         We review a trial court’s interpretation of constitutional provisions for legal error. State v. Rangel, 

, 

 (1999).
               IV. EIGHTH AMENDMENT
        The Eighth Amendment to the United States
Constitution prohibits “cruel and unusual punishments.”
734                                  Hardegger v. Amsberry

Central to that provision is the substantive guarantee of protection against disproportionate punishment. Montgomery,
___ US at ___, 

. In particular, the United
States Supreme Court has deemed “certain punishments
disproportionate when applied to juveniles.” 

 at ___, 

. In Roper v. Simmons, 

, 

, 

 (2005), the Court determined that, due
to their immaturity and diminished culpability, juveniles
cannot be sentenced to death. In Graham v. Florida, 

, 

, 

 (2010), the Court placed
life without parole outside the realm of possible sentences
for juveniles convicted of nonhomicide offenses.

         In Miller, 

, the Court held that a sentence of life without parole for a juvenile homicide offender
violates the Eighth Amendment when the sentence is mandatory, precluding the court from considering youth in sentencing. The Court determined that, “[b]y making youth
(and all that accompanies it) irrelevant to imposition of that
harshest prison sentence,” mandatory life without parole
“poses too great a risk of disproportionate punishment.”

. Miller held that “a lifetime in prison is a disproportionate sentence for all but the rarest children, those
whose crimes reflect ‘irreparable corruption.’ ” Montgomery,
___ US at ___, 

 (quoting Miller, 

). Thus, courts must “consider a child’s ‘diminished
culpability and heightened capacity for change’ before condemning him or her to die in prison.” 

 (quoting Miller, 

). To pass constitutional muster, a sentence of life
without parole requires consideration of “how children are
different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Miller, 

.

         In Link, we observed that Miller’s requirement
to consider youth at sentencing is addressed to sentences
involving the state’s “most severe penalties.” 

. Link involved a direct appeal in which a juvenile defendant, who had committed aggravated murder, was automatically tried in adult court and, upon conviction, received a
life sentence, 30 years of which he was required to serve
before he could seek eligibility for any sort of release. We
Cite as 

 (2020)                                 735

recognized that Miller had distilled from Roper and Graham
the “ ‘foundational principle’ ” that the “ ‘imposition of a
State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.’ ” 

 (quoting Miller,

 (emphasis in Link)). “Thus,” we said, “Roper,
Graham, and Miller work to ensure that sentences are proportionate under the Eighth Amendment by announcing
both substantive and procedural limitations on the sentencing of juveniles.” 

 Notably, “sentences of life imprisonment without parole for homicide offenses are substantively
limited—being constitutionally disproportionate when
imposed on almost all juveniles, but for the ‘rare juvenile
offender whose crime reflects irreparable corruption.’ ” 

 at
134 (quoting Graham, 

).

         Faced in Link with a life sentence, not with a sentence of life without parole as in Miller, we went on. We
stated that “any sentence that is among the state’s most
severe is procedurally limited. Such a severe sentence cannot be imposed on a juvenile as though they were not children,” meaning it “cannot be imposed without the sentencer
being afforded the ability to consider youth.” 

 at 134-35
(quoting Miller, 

 (internal quotation marks
and brackets omitted)). We explained,
   “An offender’s age is relevant to the Eighth Amendment,
   and criminal procedure laws that fail to take defendants’
   youthfulness into account at all are flawed. In other words,
   Eighth Amendment proportionality imposes a positive
   duty—a requirement upon the sentencer before imposing
   a severe sentence—to consider the lessened culpability of
   a juvenile offender and the lesser likelihood that a juvenile
   offender forever will be a danger to society. Only through
   the consideration of youth is a constitutionally proportionate sentence assured.”

 (internal citations and quotation mark omitted). We recognized that “the principles of Roper, Graham, and Miller”
applied to “the state’s most severe penalties against a juvenile defendant,” and, when that is so, “then procedurally, the
imposition of that sentence cannot proceed as if the juvenile were not a child, even if the sentence otherwise might
have been substantively permissible.” Id. at 136 (emphasis
736                                     Hardegger v. Amsberry

in original). “[W]hen the sentence is among the most severe,
the secondary question becomes whether the statutory sentencing scheme for a juvenile offender fulfills the constitutional duty to fully consider youth in sentencing.” Id. at
136-37.
         In light of that duty, we examined Oregon’s process
for sentencing juveniles convicted of aggravated murder. A
host of statutory factors in that case weighed in our evaluation whether the sentencing scheme fulfilled the constitutional duty to consider youth in sentencing: (1) Oregon’s
Measure 11 “extinguished” the consideration of youth
by eliminating a waiver hearing and mandating certain
youth be tried as adults, ORS 137.707(1); (2) the sentence
for aggravated murder was mandated to be no less than a
life sentence, ORS 163.105, thereby denying consideration
of youth by the sentencing court; (3) the defendant was
denied any second-look hearing, which is afforded to other
juvenile offenders and which provides them an opportunity
for conditional release rather than completion of their original sentences, ORS 420A.203; and (4) the eventual murder
review hearing, which would be available after 30 years to
the defendant, ORS 163.105(2), failed to provide a meaningful substitute for consideration of youth in determining
culpability at the time of sentencing. Id. at 138, 143-44,
149-50.
         We determined that the statutes “fail the procedural obligation—the affirmative duty—to assess the role of
youth at the time of sentencing in determining the constitutionally proportionate sentence.” Id. at 158. We emphasized
   “that neither Miller, the Eighth Amendment, nor our opinion in this case, categorically prohibits the state from
   imposing a life sentence on a juvenile in all cases. The problem lies not with the potential substance of the sentence
   but with the procedural imposition of the sentence.”
Id. at 156. We concluded that, as a procedural matter, “a
sentencing scheme that dictates such a severe sentence be
applied to a juvenile defendant, without regard for the qualities of youth, runs afoul of Miller.” Id. Because youth had not
been considered, we reversed and remanded the defendant’s
conviction for resentencing. Id. at 158.
Cite as 

 (2020)                                737

                    V.   RETROACTIVITY
A.   New Rules
         Petitioner relies upon Miller and Link, two cases
decided years after his conviction became final. Because his
conviction was final, he necessarily seeks post-conviction
relief, which asks us to determine whether the rules
announced in those cases are new, and, if new, then whether
they are retroactively applicable. “A court must analyze retroactivity only when considering whether to apply a newly
announced rule in a given case.” Moen v. Peterson, 

, 

 (1991). “If the holding in [a given case]
was not a new rule, then no question of retroactivity arises.”

.
         Miller did not “simply appl[y] the general rule
announced in [a prior case] to specific facts.” 

.
“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, ___ US at ___, 

.
Consequently, Miller has been acknowledged as a new rule
of substantive constitutional law that affects juveniles sentenced to life without parole. 

 at ___, 

.
         Link extended the principle of Miller to a sentence
to life imprisonment with some possibility of parole after
30 years, requiring consideration of the offender’s youth at
the time of sentencing to avoid a disproportionate sentence.
In that way, Link announced something new by extending
that principle of Miller to a potentially lesser version of a life
sentence. Thus, Link, likewise, involved a new rule. Because
the rules in Miller and Link are each new, we must consider
the question of whether they are the type of new rules that
are entitled to retroactive effect.
B.   Standards Determining Retroactivity
         Justice O’Connor’s plurality opinion in Teague, 

, provides a framework for determining the retroactivity of federal constitutional principles in cases on collateral review. Teague differentiates between new substantive rules of constitutional law and new procedural rules
738                                              Hardegger v. Amsberry

of constitutional law. Substantive rules “set forth categorical constitutional guarantees that place certain criminal
laws and punishments altogether beyond the State’s power
to impose.” Montgomery, ___ US at ___, 

.
Substantive rules also include those “ ‘prohibiting a certain
category of punishment for a class of defendants because of
their status or offense.’ ” 

 at ___, 

 (quoting
Penry v. Lynaugh, 

, 

, 

 (1989)). “ ‘[E]ven the use of impeccable factfinding
procedures could not legitimate a verdict’ where ‘the conduct being penalized is constitutionally immune from punishment.’ ” 

 (quoting United States v. United States Coin
& Currency, 

, 

, 

(1971)).7
          “Procedural rules, in contrast, are designed to
enhance the accuracy of a conviction or sentence by regulating ‘the manner of determining the defendant’s culpability.’ ”

 at ___, 

 (quoting Schriro v. Summerlin,

, 

, 

 (2004)
(emphasis in original)). Such rules “merely raise the possibility that someone convicted with use of the invalidated
procedure might have been acquitted otherwise.” Schriro,

.
         Thus, “[e]ven where procedural error has infected
the trial, the resulting conviction or sentence may still be
accurate,” and, for that reason, “a trial conducted under
a procedure found to be unconstitutional in a later case
does not, as a general matter, have the automatic consequence of invalidating a defendant’s conviction or sentence.”
Montgomery, ___ US at ___, 

.

    7
      Although Oregon is free to develop its own approach to the retroactivity
of new procedural rules, Oregon courts have followed the federal lead and have
not exercised the authority to take a different course. See Chavez v. State of
Oregon, 

, 

 (2019) (declining to revisit Oregon’s
adherence to the federal approach); Verduzco, 

 (allowing review
to consider whether to diverge, but ultimately not reaching the question); Page
v. Palmateer, 

, 

 (2004) (following federal analysis
under Teague); Saldana-Ramirez v. State of Oregon, 

, 

, rev den, 

 (2013) (deferring to the Oregon Supreme Court); Frias
v. Coursey, 

, 

 (2009) (same); Peed v. Hill, 

, 

 (2007) (following “retroactivity principles expressed in
Teague”).
Cite as 

 (2020)                                                 739

         Both federal and state courts must give retroactive effect to new substantive rules of federal constitutional
law. 

 at ___, 

. “Such rules apply retroactively because they necessarily carry a significant risk
that a defendant stands convicted of an act that the law
does not make criminal or faces a punishment that the law
cannot impose upon him.” Schriro, 

 (quoting
Bousley v. United States, 

, 

,

 (1998) (internal quotation marks omitted)).
“[T]he Constitution requires substantive rules to have retroactive effect regardless of when a conviction became final.”
Montgomery, ___ US at ___, 

. In contrast,
new constitutional rules of criminal procedure generally
will not apply to convictions that were final when rules were
announced. 

 at ___, 

.8
C. A Parallel Precedent
        The difficulty in determining whether Miller or
Link are retroactive—whether they are substantive or procedural—comes from the mixed nature of each of those decisions. The Oregon Supreme Court recently explained:
        “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. 

. 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. 

    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. 

 Likening life
    without parole for juveniles to the death penalty, the Court

     8
       As to procedural rules, an exception to nonretroactivity exists for “ ‘watershed rules of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.” 

 at ___, 

 (quoting Schriro, 

). For a new rule of procedure to fall within that exception, it must be
a rule that is both an “absolute prerequisite to fundamental fairness” and one
“without which the likelihood of an accurate conviction is seriously diminished.”
Teague, 

. The test for whether a holding constitutes a watershed
rule “is a demanding one, so much so that [the United States Supreme] Court has
yet to announce a new rule of criminal procedure capable of meeting it.” Ramos v.
Louisiana, 

, ___, 

, 

 (2020).
740                                     Hardegger v. Amsberry

   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.”
White, 

. Despite the mixed nature of Miller, we
have been given an answer on its retroactivity.
          In Montgomery, the United State Supreme Court
acknowledged that Miller contained both substantive and
procedural characteristics but concluded that, in its essence,
Miller was a substantive rule of constitutional law. ___ US
at ___, 

. The conclusion was not explained
easily. The state had argued that Miller did not forbid life
without parole for all juveniles; that such a sentence was
still permissible for the “rarest of children”; and that, therefore, the consideration of youth at sentencing should be
characterized as only a matter of constitutional procedure.

 at ___, 

. The Court stressed that possibility of such a sentence on youth would be “uncommon.” 

The Court elaborated:
       “Miller, then, 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. 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. Because Miller determined that sentencing a child to
   life without parole is excessive for all but the rare juvenile
   offender whose crime reflects irreparable corruption, it rendered life without parole an unconstitutional penalty for a
   class of defendants because of their status—that is, juvenile offenders whose crimes reflect the transient immaturity of youth. As a result, Miller announced a substantive
   rule of constitutional law.”

 (internal citations and quotation marks omitted). Miller
was a substantive rule because a sentence of life without
parole, when imposed on juvenile offenders was, on the
whole, within the prohibited “ ‘category of punishment for a
class of defendants because of their status or offense.’ ” 

 at
___, 

 (quoting Penry, 

).
Cite as 

 (2020)                                  741

         Montgomery explained that the procedural feature
of Miller was merely the device by which the few are distinguished from the many for whom punishment by lifetime
imprisonment may not be imposed as a matter of status.
The Court recounted that:
   “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. The only difference between Roper
   and Graham, on the one hand, and Miller, on the other
   hand, is that Miller drew a line between children whose
   crimes reflect transient immaturity and those rare children whose crimes reflect irreparable corruption. The fact
   that life without parole could be a proportionate sentence
   for the latter kind of juvenile offender does not mean that
   all other children imprisoned under a disproportionate
   sentence have not suffered the deprivation of a substantive
   right.”

 at ___, 

. Rejecting the state’s argument
about procedure, the Court explained that it
   “conflates a procedural requirement necessary to implement a substantive guarantee with a rule that regulate[s]
   only the manner of determining the defendant’s culpability.
   There are instances in which a substantive change in the
   law must be attended by a procedure that enables a prisoner to show that he falls within the category of persons
   whom the law may no longer punish.”

 at ___, 

 (some emphasis added;
internal citation and quotation marks omitted). In short,
Montgomery determined that the procedural component
of Miller was just an “attendant” feature of a substantive
rule protecting against disproportionate punishment. 

.
                     VI. APPLICATION
          In its essence, Link is no different. Just as Miller
extended Roper and Graham, yet remained a substantive
principle of constitutional law, so too did Link extend Miller
from a sentence of life without parole to a life sentence
with a chance of parole, yet remained a substantive principle of constitutional law. Just as in Miller, the procedural
742                                  Hardegger v. Amsberry

feature—the requirement that youth be considered at sentencing—was an attendant feature necessary to protect the
substantive constitutional right, Link imposes the same
procedural feature to protect the substantive right against
disproportionate punishment. Both decisions involve a procedural rule necessary to implement the substantive protection against a disproportionate punishment for juvenile
offenders. Just as Montgomery determined Miller to be a
substantive rule, we conclude that Link is a substantive
constitutional rule. Therefore, notwithstanding petitioner’s
final judgment of conviction, Link, like Miller, must have
retroactive effect. See Montgomery, ___ US at ___, 

 (giving retroactive effect to Miller on collateral
review).
         As in Link, petitioner’s sentence implicated the
Eighth Amendment by presenting an unacceptable risk of
disproportionate punishment. Although a juvenile at the
time of his offense, petitioner was automatically tried as an
adult, without a hearing to waive juvenile court jurisdiction. Given Oregon’s statutory scheme at the time, the trial
court failed to consider petitioner’s youth so as to consider
the prospect of “diminished culpability” or the potential for
a “heightened capacity for change.” Miller, 

.
He received a mandatory sentence of life imprisonment. He
was denied a second-look hearing, to which other juvenile
offenders are entitled. Finally, as in Link, “the possibility
of a murder review hearing by the parole board … years
in the future is not a constitutionally adequate substitute”
for the consideration of youth at the time of sentencing. 

. The superintendent does not contend that
this case is different because petitioner may apply for a murder review hearing after a mandatory minimum term of 25
years, rather than 30 years as in Link. It is not. The arguable distinctions between this case and Link do not avoid the
application of Link to this case.
        We recognize that Link involved a conviction for
aggravated murder under ORS 163.105, while this case
involves a conviction for murder under ORS 163.115. Both
cases, however, involve convictions for murder and both
involve life sentences. When we followed Miller’s focus on
“the most severe sentences,” we did not seek to determine or
Cite as 

 (2020)                                                743

to fix the limits of that phrase. Id. at 148.9 And, of course,
the protection of the Eighth Amendment for youth does not
turn on what are the most severe crimes. See Graham, 

 (finding a sentence of life without parole constitutionally disproportionate for non-homicide offenses). Rather,
the protection of the Eighth Amendment for youth turns
upon what are disproportionate sentences. When comparing
the sentence in Link and the sentence in this case, it is difficult to deny that this life sentence, like the life sentence in
Link, is among “the most severe sentences.”
          We also recognize that the number of juvenile
offenders subject to a sentence of life imprisonment with a
minimum of 25 years’ imprisonment for murder, as here,
might be marginally larger than the number of juveniles
subject to a life sentence with a minimum of 30 years’
imprisonment for aggravated murder as in Link. For that
matter, the number of youth subject to either version of a
life sentence in Oregon might be marginally larger than the
number of youth subject to a life sentence without parole as
in Miller. But such differences are unknowable and immaterial. Given the required consideration of youth at sentencing affecting both culpability and rehabilitation, we cannot
really know the potentially modest number of youth properly subject to life sentences with mandated terms of imprisonment as compared to the few youth subject to a sentence
of life without parole. Certainly, that potential difference in
numbers did not prevent us in Link from applying Miller to
a life sentence, one like that here.
         More importantly, there is no meaningful comparison between those imagined numbers of youth subject to
those life sentences. That is because any comparison between
the number of juveniles subject to one penalty or the other
does not change the essential character of the constitutional

   9
     In Link, 

, we stated:
       “We need not decide the full contours of what constitutes the harshest or
   most severe criminal penalties in Oregon. It is sufficient, for purposes of this
   case, to say that the three sentences set forth in ORS 163.105 for aggravated
   murder—the most serious crime in Oregon—are, unsurprisingly, the ‘most
   severe’ punishments available in the state and, as such, are in the category
   of penalties to which the principles set forth in Roper, Graham, and Miller
   apply.”
744                                   Hardegger v. Amsberry

protection at issue in either case. The common requirement
of Miller and Link is that these penalties, which are among
the severest of penalties, cannot be imposed on juvenile
offenders “whose crime reflects unfortunate yet transient
immaturity.” Miller, 

. The common requirement of Miller and Link is that, before such sentences can
be imposed on youth, the sentencing court must consider the
prospect of “diminished culpability and heightened capacity
for change.” 

 For that reason, the difference in sentences
is a statutory distinction without a constitutional difference.
          Finally, we recognize that the majority opinion is
not the only plausible answer to the issues presented in this
case. The dissenting opinion would prefer that we conclude
that Link, unlike Miller, is essentially a procedural rule and
therefore would not be retroactive to this case. Different opinions are reasonable, now as before. Until Montgomery, views
of Miller reasonably differed because Miller wove together
substantive and procedural lines of cases. See White, 

 (citing substantive and procedural precedents); see also
Montgomery, ___ US at ___, ___, 

 (noting differing opinions of lower courts related to procedural
argument). However, as recounted, Montgomery decided
Miller ultimately was substantive. Montgomery explained
that Miller’s procedural feature protected an underlying
substantive right. Link, when following Miller, necessarily
incorporated substantive and procedural precedents, and,
today, differing views about which matters most may again
occur.
          To suggest that Link is essentially procedural fails
to fully appreciate its substantive content. Link assures that
a life sentence shall not be imposed upon those whose crimes
“reflect transient immaturity.” See Montgomery, ___ US at
___, 

 (explaining Miller). As such, Link, like
Miller, works to protect youth, as a class of persons, from
disproportionate punishment. Although there may be youth
who are exceptions, that number is unknowable, and they
are youth to be carefully distinguished in sentencing procedure from those many youth whose offenses reflect a “diminished culpability and a heightened capacity for change.”
See Miller, 

. And, the fact that the life sentence “could be a proportionate sentence for the latter kind
Cite as 

 (2020)                              745

of juvenile offender does not mean that all other children
imprisoned under a disproportionate sentence have not suffered the deprivation of a substantive right.” Montgomery,
___ US at ___, 

. For such youth, those whose
sentences implicate the Eighth Amendment, the rule at
work is ultimately a substantive protection against disproportionate punishment. 

                    VII.   CONCLUSION
         For those reasons, Link applies, and it is a substantive rule that is retroactive to petitioner’s conviction. As
it was imposed, petitioner’s conviction was impermissible
under the Eighth Amendment. Petitioner is entitled to post-conviction relief directing that he be resentenced. See Link,

 (remanding for resentencing).
        Reversed and remanded.
        MOONEY, J., concurring in part, dissenting in
part.
         I join the majority and concur in the part of its opinion where it accepts the superintendent’s concession that the
post-conviction court erred in ruling that petitioner’s claim
is barred by ORS 138.510 and ORS 138.550. I agree that his
claim, saved by the so-called escape clause, is not statutorily
time barred.
        I do not agree, however, that petitioner’s sentence
is unconstitutional, and I offer this dissenting opinion to
explain why.
         I agree that Miller v. Alabama, 

, 

, 

 (2012), and State v. Link, 

, 

, rev allowed, 

 (2019),
announced new rules. I also agree that Miller announced
a new rule of substantive constitutional law that affects
juveniles sentenced to life without any chance of parole.
Montgomery v. Louisiana, ___ US ___, ___, 

, 

 (2016). “After Miller, it will be the rare
juvenile offender who can receive” a sentence of life without
parole. 

 at ___, 

. Miller also established a
new procedural rule that requires the trial court to consider
the offender’s youth at the time of sentencing in cases where
746                                   Hardegger v. Amsberry

the juvenile offender could be sentenced to life without any
chance of parole. See 

 (“Miller’s holding has a procedural
component.”).
        Link, like Miller, involved a new rule. It extended
the procedural rule established by Miller, an aggravated
murder case with a true life sentence, to another aggravated
murder case with a less severe sentence—life imprisonment
with the possibility of parole after 30 years. The question of
whether Link properly extended Miller is currently pending
review in the Oregon Supreme Court.
         The majority now extends Miller vis-à-vis Link
(both of which were direct appeals) even farther in this post-conviction case, which involves a felony murder conviction
and a life sentence with the chance of parole after 25 years.
I acknowledge that the difference between 25 and 30 years
is a simple matter of five years. And, yet, this additional
extension of Miller some years after petitioner’s conviction
and sentence were made final does not easily square with
Montgomery’s clarification that “Miller required that sentencing courts consider a child’s diminished culpability and
heightened capacity for change before condemning him or
her to die in prison.” Montgomery, ___ US at ___, 

 (internal quotation marks and citation omitted; emphasis added). Nor is this latest extension of Miller logical given
that a Miller violation may be remedied “by permitting juvenile homicide offenders to be considered for parole, rather
than by resentencing them.” 

 at ___, 

.
Here, petitioner was sentenced to life with the possibility of
parole in 25 years. He was not condemned to die in prison.
In other words, his sentence is the Miller remedy. Said in
yet another way, extending Miller to this case would not be
necessary because petitioner’s sentence already affords him
the possibility of parole.
         But assuming, as I must, that Link is correctly
decided, I part ways with the majority in its characterization of the new Link rule as being substantive. Whether the
new rule is entitled to retroactive effect requires the consideration of two questions. First, does Link express a substantive rule of constitutional law or a rule of constitutional
procedure? I pose the question in terms of Link, not Miller,
Cite as 

 (2020)                              747

because Link involved a life sentence with the possibility of
parole after 30 years. Miller involved a life sentence without
the possibility of parole. Petitioner’s sentence of life with a
minimum of 25 years imprisonment is like Link, not Miller.
The distinction is significant.
         In Montgomery, the United States Supreme Court
decided that Miller, although involving both substantive and
procedural features, was essentially a substantive rule of
constitutional law. ___ US at ___, 

. Miller
held that a sentence of life without parole was unconstitutionally disproportionate and, with rare exceptions, could
not be imposed on that class of defendants who are juvenile.
For that reason, the Montgomery court explained that Miller
was more substantive than procedural. 

         The same cannot be said of Link. In that case, a sentence of life without parole was not imposed. The sentence at
issue was a life sentence with the possibility of parole after
30 years, which is not the type of sentence that Miller limited
to all but the rarest of children, those “whose crimes reflect
irreparable corruption.” Miller, 

. Although
Link involved a significant sentence, it was a less severe sentence than in Miller and was, in my view, beyond the scope
of sentences substantively limited by Miller. Additionally,
and as discussed above, the sentence in Link would itself be
an appropriate remedy for a true life sentence imposed in
violation of the procedural requirements imposed by Miller
(meaningful opportunity for release based on demonstrated
maturity and rehabilitation).
         Unlike substantive rules, Link did not “place certain criminal laws and punishments altogether beyond the
State’s power to impose.” Montgomery, ___ US at ___, 

. Unlike Miller, Link did not prohibit a certain
category of penalties for a class of defendants because of
their status. See 

. Instead, Link extended the “procedural component” of Miller from cases involving true life
sentences to those involving life sentences with the chance
of parole after 30 years.
        Link examined the statutory scheme that precluded
consideration of youth for juveniles convicted of aggravated
748                                             Hardegger v. Amsberry

murder and determined that the scheme failed a “procedural
obligation.” 

. Link plainly stated that “[t]he
problem lies not with the potential substance of the sentence,
but with the procedural imposition of the sentence.” 

 (emphases added). We held that, when the state imposes
its most severe penalties, “then procedurally, the imposition
of that sentence cannot proceed as if the juvenile were not
a child[.]” 

. We explained that those sentences are
“procedurally limited.” 

. Link addresses how the
trial court imposes such a sentence in order to ensure that
the sentence is appropriate: the trial court must consider the
juvenile offender’s lessened culpability and lesser likelihood
of being a danger to society. 

. The answer to the
first question, in my view, is that Link established a rule of
constitutional procedure for future cases but not a substantive rule that must be retroactively applied.
          I now turn to the second question. Notwithstanding
my conclusion that Link expresses a constitutional rule of
procedure, is it nonetheless a watershed rule that must
be retroactively applied? The question is made necessary
because an exception to nonretroactivity exists for “ ‘watershed rules of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.”
Montgomery, ___ US at ___, 

 (quoting Schriro
v. Summerlin, 

, 352 n 4, 

, 

 (2004)). For a new rule of procedure to fall within this
exception, it must be a rule that is both an “absolute prerequisite to fundamental fairness” and one “without which the
likelihood of an accurate conviction is seriously diminished.”
Teague v. Lane, 

, 

, 

 (1989).
          The test for whether a holding constitutes a watershed rule “is a demanding one, so much so that [the United
States Supreme] Court has yet to announce a new rule
of criminal procedure capable of meeting it.” Ramos v.
Louisiana, 

, ___, 

, 

 (2020).1
    1
      The United States Supreme Court “has pointed only to the right to counsel
recognized in Gideon v. Wainright, 

, 

, 

 (1963),
as the kind of rule that would qualify.” Miller v. Lampert, 

, 

 (2006).
Cite as 

 (2020)                              749

         A watershed rule of criminal procedure is “one that
is fundamentally necessary to ensure that a criminal defendant is not wrongly convicted.” Page v. Palmateer, 

, 

, cert den, 

 (2004) (emphasis
in original). Thus, watershed rules are concerned with the
accuracy of criminal convictions, not criminal sentences. Id.
         In Page, the Oregon Supreme Court considered
whether the rule announced in Apprendi v. New Jersey, 

, 

, 

 (2000), would qualify.

. Apprendi had held that, under the Sixth and
Fourteenth Amendments to the United States Constitution,
“[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” 

. Page concluded
that the Apprendi holding did not entail a watershed rule.

. The court reasoned, Apprendi’s “purpose is
to ensure that, … the facts supporting the criminal defendant’s sentence are submitted to a jury and proven beyond
a reasonable doubt. The rule, by its terms, is not concerned
with ensuring the accuracy of a criminal defendant’s conviction.” 

 “For that reason,” the court concluded, “it is clear
that Apprendi is not the sort of ‘watershed’ rule of criminal
procedure that either Justice Harlan or the [Teague] Court
contemplated.” 

         Link was concerned with the defendant’s sentence,
not his underlying conviction. Because Link addressed procedure that had nothing to do with the accuracy or fairness
of the defendant’s conviction, Link did not announce a watershed rule of criminal procedure. Page, 

. It is not
an “absolute prerequisite to fundamental fairness” without
which “the likelihood of an accurate conviction is seriously
diminished.” Teague, 

. The requirement to
consider youth at sentencing is most certainly procedural,
but it is not a watershed rule of criminal procedure, see
Page, 

 (holding that a constitutional rule is not
a watershed rule), and it should not be retroactively applied.
         For the reasons I have stated, I would hold that the
trial court did not err in dismissing the petition for post-conviction relief. And, because of that, I respectfully dissent.