Case v. Cain

                                 457

  Submitted on remand from the Oregon Supreme Court July 12, affirmed
                          September 9, 2021


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

  On remand from the Oregon Supreme Court, Case v.
Cain, 

, 

 (2021).
  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.
  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
  PER CURIAM
  Affirmed.
458                                                             Case v. Cain

           PER CURIAM
         This post-conviction case is before us on remand
from the Supreme Court for reconsideration in light of State
v. Link, 

, 

 (2021) (Link II). Case v.
Cain, 

, 

 (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, § 31,1 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, 

, 

, 

 (2012), as interpreted
by our court in State v. Link, 

, 

(2019) (Link I). Case v. Cain, 

, 

 (2020), vac’d and rem’d, 

, 

(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.

 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, 

. 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, 

, 

 (2021) (reaching similar conclusion under
Link II regarding sentence imposed on juvenile under ORS
163.115).
         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

    1
      All references in this opinion to ORS 163.105 are to the 1999 version of the
statute.
Cite as 

 (2021)                           459

petitioner acknowledges, that argument is foreclosed by our
decision in State v. Conrad, 

, 

 (2016), rev den, 

 (2017), and we reject it for
that reason.
        Affirmed.