Case v. Cain

                                        21

      Submitted March 15, 2019, reversed and remanded August 19, 2020


                 DAVID KIRKPATRICK CASE,
                      Petitioner-Appellant,
                                v.
                           Brad CAIN,
                        Superintendent,
               Snake River Correctional Institution,
                     Defendant-Respondent.
                  Malheur County Circuit Court
                      16CV20844; A164729
                                   

    In 1999, when petitioner was a youth, he was sentenced under a mandatory
sentencing scheme to life in prison for a minimum of 30 years. After the United
States Supreme Court’s decision in Miller v. Alabama, 

, 

, 

 (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 because it was based on a newly recognized retroactive constitutional
right. 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 for the possibility of parole, and that petitioner’s
claim was also therefore time barred. Petitioner appeals the court’s grant of summary judgment, renewing his arguments made below. Held: The post-conviction
court erred in granting the motion for summary judgment. The superintendent
waived his contention that the petition was untimely, and, under Hardegger v.
Amsberry, 

, 

 (2020), 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 was substantive, and therefore
retroactively applied to petitioner’s petition.
    Reversed and remanded.



    Erin K. Landis, Judge.
   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.
22                                           Case v. Cain

   Before Lagesen, Presiding Judge, and DeVore, Judge, and
Sercombe, Senior Judge.
     LAGESEN, P. J.
     Reversed and remanded.
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 (2020)                                                  23

           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, § 31.1 After the
United States Supreme Court’s decision in Miller v. Alabama,

, 

, 

 (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.
        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, 

, 

 (1993), aff’d in part on other grounds,

, 

 (1994) (explaining that the post-conviction relief limitations period is not jurisdictional and
    1
      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.
24                                                             Case v. Cain

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, 

, 

 (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.2 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, 

, 

 (2016).
         Our opinion in Hardegger v. Amsberry, 

, 

 (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),3 and,
after the decision in Miller, he sought post-conviction relief.

. The superintendent moved for summary judgment, which was granted, and, on appeal, the parties’ arguments were virtually identical to those before us 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. 

, 741-42 (citing Link, 

). We also concluded that the statutory sentencing
scheme did not provide the “meaningful substitute for consideration of youth” necessary to cure a Miller violation. 

     2
       The superintendent also argues that Link was wrongly decided. We reject
that contention without further discussion.
     3
       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.
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at 736; see also Link, 

 n 5 (explaining that
“Oregon’s murder review hearing is not ‘extending parole
eligibility’ in the manner contemplated by [Montgomery v.
Louisiana, ___ US ___, 

, 

(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.