Gillette v. Cain

                                 711

  Submitted on remand from the Oregon Supreme Court July 14, affirmed
                          November 17, 2021


                   KEITH GILLETTE,
                   Petitioner-Appellant,
                             v.
                        Brad CAIN,
                     Superintendent,
            Snake River Correctional Institution,
                  Defendant-Respondent.
               Malheur County Circuit Court
                   17CV20510; A167484
                              

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

, 

 (2021).
  Lung S. Hung, Judge.
   Jedediah Peterson 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 brief for respondent.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
  PER CURIAM
  Affirmed.
712                                                        Gillette 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). Gillette v.
Cain, 

, 

 (2021). Petitioner was a juvenile when he was charged with aggravated murder. After a
waiver hearing, he was tried as an adult and found guilty by
a jury. The court then sentenced him to life in prison under
ORS 163.105 (1987).1 He was later granted post-conviction
relief, retried, and again found guilty and the court sentenced him to life in prison with the possibility of parole
after a fixed term of years.
         In our original opinion, we concluded that petitioner was entitled to post-conviction relief because the
waiver hearing that resulted in petitioner being tried as an
adult could not “serve as an adequate substitute for individualized consideration of youth at sentencing” as required by
Miller v. Alabama, 

, 

, 

 (2012), as we interpreted it in State v. Link, 

, 

 (2019), rev’d, 

, 

 (2021)
(Link I). Gillette v. Cain, 

, 

(2020), vac’d and rem’d, 

, 

 (2021). In
our view, the inadequate waiver hearing did “not prevent
the risk of a constitutionally disproportionate sentence” and
we, thus, reversed and remanded the case. Id. at 289.
         In Link II, the Supreme Court reversed our opinion
in Link I and held that the statutory scheme under which
the juvenile offender had been sentenced for murder—
providing for life imprisonment with the chance of parole
after 30 years—did not impose “the functional equivalent
of life without parole,” did not deprive the juvenile offender
in that case of a meaningful opportunity for release, and,
therefore, did not violate the Eighth Amendment to the
United States Constitution. Link II, 

. The
Supreme Court thereafter remanded this case to us for
reconsideration in light of its Link II decision. Gillette, 368

   1
     The statute has since been amended. See Or Laws 1989, ch 720, § 1; Or
Laws 1991, ch 126, § 8; Or Laws 1995, ch 421, § 2; Or Laws 1999, ch 59, § 31; Or
Laws 1999, ch 782, § 5; Or Laws 2007, ch 717, § 1; Or Laws 2009, ch 660, § 6; Or
Laws 2015, ch 820, § 45; Or Laws 2019, ch 634, § 27.
Cite as 

 (2021)                           

. Petitioner was sentenced to life in prison with the
chance of parole after 30 years. He did not receive a truelife sentence. Under Link II, petitioner’s sentence does not
violate the Eighth Amendment. The fact that the sentence
was constitutional renders the adequacy of the waiver hearing immaterial. See, e.g., Hardegger v. Amsberry, 

, 

 (2021) (reaching similar conclusion under
Link II regarding sentence imposed on juvenile under ORS
163.115 (2001)); Case v. Cain, 

, 

(2021) (reaching similar conclusion under Link II regarding
sentence imposed on juvenile under ORS 163.105 (1999));
Carnahan v. Cain, 

, 

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