Gillette v. Cain

• Decision Date: 02 September 2020
• Docket Number: A167484
• Parties: Keith GILLETTE, Petitioner-Appellant, v. Brad CAIN, Superintendent, Snake River Correctional Institution, Defendant-Respondent.
• Court: Oregon Court of Appeals

306 Or.App. 287

474 P.3d 442

Keith GILLETTE, Petitioner-Appellant,

v.Brad CAIN, Superintendent, Snake River Correctional Institution, Defendant-Respondent.

A167484

Court of Appeals of Oregon.

Submitted January 28, 2020.

September 2, 2020

Jedediah Peterson filed the brief for appellant. Also on the brief was O'Connor Weber LLC.

Jeff J. Payne, Assistant Attorney General, filed the brief for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.

DeVORE, P. J.

In 1987, petitioner was a juvenile when he was charged with aggravated murder. After a waiver hearing in juvenile court, he was tried and convicted as an adult. He was sentenced to a mandatory term of life with a possibility, after a fixed term of years, to the conversion to a life sentence with the possibility of parole. ORS 163.105 (1987).¹ In a petition for post-conviction relief, petitioner argues that the sentence was unconstitutionally disproportionate under Miller v. Alabama , 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). The post-conviction court granted summary judgment in favor of the superintendent and entered a judgment denying relief.

Petitioner appeals that decision, relying on our recent opinion, State v. Link , 297 Or. App. 126, 441 P.3d 664, rev. allowed , 365 Or. 556, 451 P.3d 1000 (2019), in which we held that, under Miller , the state cannot impose its most severe penalties against a juvenile offender without consideration of his youth at the time of sentencing. The superintendent argues that petitioner's youth was adequately considered in the hearing in juvenile court to waive jurisdiction and try him as an adult. We conclude that, because a pretrial waiver hearing is not the equivalent of consideration of youth at sentencing, it does not prevent the risk of a constitutionally disproportionate sentence. Therefore, we reverse and remand.

We review the post-conviction court's entry of summary judgment to determine whether there was a genuine issue of material fact and whether the superintendent, as the moving party, was entitled to prevail as a matter of law. Washington v. Johnson , 165 Or. App. 578, 581, 997 P.2d 263, rev. den. , 330 Or. 553, 10 P.3d 943 (2000) (describing the standard under ORCP 47 C).

The facts are procedural and undisputed. In 1987, petitioner committed aggravated murder when he was 17 years old. He was charged with that crime as a juvenile, and, after a waiver hearing, was remanded to be tried as an adult, pursuant to former ORS 419.533 (1987), repealed by Oregon Laws 1993, chapter 33, section 373. A jury found him guilty, and the court sentenced him to life imprisonment pursuant to ORS 163.105 (1987).² In 1988, petitioner was granted post-conviction relief, and, in 1991, he was retried and again found guilty and sentenced to life imprisonment.

Under the terms of ORS 163.105 (1987), petitioner could seek to convert his life sentence into a life sentence eligible for parole after a minimum term of 30 years in prison before any form of release. Such a sentence would later be understood to mean that petitioner could seek to convert his sentence to a life sentence with the possibility of parole after 20 years. Janowski/Fleming v. Board of Parole , 349 Or. 432, 446-53, 245 P.3d 1270 (2010).³ Convicted of aggravated murder for an offense in 1987, petitioner did not qualify for a second-look hearing, which would have afforded the possibility of an earlier release. See ORS 420A.203(1)(a)(A) (2001), amended by Or. Laws 2019, ch. 634, § 22 (eligibility for second look).

Decades passed. In 2012, the United States Supreme Court decided Miller , concluding that, for homicide, a mandatory sentence of life without parole is unconstitutionally excessive for all but the rare juvenile offender whose crime reflects irreparable corruption. 567 U.S. at 460, 132 S.Ct. 2455. Soon after, the Court determined that Miller ’s holding represented a substantive rule of constitutional law to which states must give retroactive effect. Montgomery v. Louisiana , ––– U.S. ––––, 136 S. Ct. 718, 734, 193 L. Ed. 2d 599 (2016).

In 2017, petitioner filed this successive petition for post-conviction relief asserting that, under Miller , his sentence violates the Eighth Amendment to the United States Constitution and Article I, section 16, of the Oregon Constitution. The superintendent moved for summary judgment. The post-conviction court granted that motion. It observed that " Miller simply makes unconstitutional life without parole," and that petitioner's sentence permitted "the possibility of parole after 30 years." The court concluded that " Miller just does not address those issues, does not extend that far." The court entered a judgment denying relief.

Petitioner appeals. He assigns error to the court's decision to grant summary judgment, challenging the court's conclusion regarding the constitutionality of the sentencing statute. Petitioner argues that Miller requires the state to provide him, as a juvenile offender, a meaningful opportunity to obtain release based on his demonstrated maturity and rehabilitation. Petitioner also cites Link , arguing that he "was sentenced to essentially the same sentence pursuant to the same sentencing scheme that this court declared unconstitutional in Link ." He contends that Link shows that the post-conviction court was incorrect in its conclusion regarding Miller ’s inapplicability. The superintendent responds that petitioner suffered no constitutional violation under Miller and Link , because petitioner's waiver hearing into adult court satisfied the procedural requirement of taking account of youth.⁴

To frame the parties’ arguments, we describe the context in which Miller and Link arises. The Eighth Amendment to the United States Constitution prohibits "cruel and unusual punishments." That provision protects against sentences that are disproportionate. Montgomery , ––– U.S. ––––, 136 S. Ct. at 732. As relevant here, the United States Supreme Court has declared "certain punishments disproportionate when applied to juveniles." Id. In Miller , the Court ended the mandatory sentencing of juveniles to life in prison without the possibility of parole because it "poses too great a risk of disproportionate punishment" by "making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence." 567 U.S. at 480, 132 S.Ct. 2455.

The Court determined that "a lifetime in prison is a disproportionate sentence for all but the rarest of children, those whose crimes reflect ‘irreparable corruption.’ " Id. at 479, 132 S. Ct. 2455. Consideration of "how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison," is required. Id. at 480, 132 S. Ct. 2455. Before condemning a juvenile to die in prison, the sentencer must consider the juvenile's "diminished culpability and heightened capacity for change." Id . at 479-80, 132 S. Ct. 2455.

In Link , we determined that Oregon's scheme for sentencing juveniles convicted of aggravated murder was unconstitutional under Miller . In that case, the defendant had committed aggravated murder as a minor. He was automatically tried and convicted in adult court, and he received a life sentence, 30 of years of which he would serve before he could seek eligibility for any sort of release. We held that, under Miller , courts must consider youth before imposing the state's "most severe penalties," which included that life sentence. Link , 297 Or. App. at 134, 441 P.3d 664. We said that "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.’ " Id. at 135, 441 P.3d 664 (quoting Montgomery , ––– U.S. ––––, 136 S. Ct. at 733 ).

We concluded that the statutory scheme under which the Link defendant received his sentence failed that procedural obligation. Id. at 158, 441 P.3d 664. We highlighted the ways in which the system had systematically eliminated consideration of youth from the criminal process: First, Measure 11 (1994) eliminated the waiver hearing for juveniles 15, 16, and 17 years old, mandating that they be tried as adults, ORS 137.707(1) ; second, a conviction for aggravated murder carried with it a mandatory penalty of life imprisonment, ORS 163.105 ; third, such juvenile offenders were ineligible for a second-look hearing, which would have afforded an opportunity for an earlier release, ORS 420A.203 ; finally, the eventual murder review hearing, ORS 163.105(2), failed to consider youth properly and, coming 30 years into the sentence, would occur too late to do so meaningfully. Link , 297 Or. App. at 138, 149, 441 P.3d 664. We recognized that "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. at 157, 441 P.3d 664. We concluded that Oregon's sentencing scheme for aggravated murder violates the Eighth Amendment. Id. at 158, 441 P.3d 664. We vacated the defendant's sentence and remanded for resentencing. Id.

After those precedents, this case reduces to the question of whether the process of waiving a juvenile to adult court satisfies the requirement of Miller and Link that the sentencer consider youth before imposing the state's most severe penalties. Petitioner's sentence, and the process for imposing it, nearly mirrors that which we deemed unconstitutional in Link : Petitioner was a minor when he committed aggravated murder; he was tried in adult court; he received a mandatory sentence of life in prison, of which he was to serve a minimum of 30 years; he was not automatically eligible for parole consideration, but could undertake to seek, through the...