Hardegger v. Amsberry

• Decision Date: 12 August 2020
• Docket Number: A165761
• Citation: 473 P.3d 576,305 Or.App. 726
• Parties: Brian Joseph HARDEGGER, Petitioner-Appellant, v. Brigitte AMSBERRY, Superintendent, Eastern Oregon Correctional Institution, Defendant-Respondent.
• Court: Oregon Court of Appeals

305 Or.App. 726

473 P.3d 576

Brian Joseph HARDEGGER, Petitioner-Appellant,

v.Brigitte AMSBERRY, Superintendent, Eastern Oregon Correctional Institution, Defendant-Respondent.

A165761

Court of Appeals of Oregon.

Argued and submitted December 2, 2019

August 12, 2020

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.

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 , 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). More recently, in State v. Link , 297 Or. App. 126, 441 P.3d 664, rev. allowed , 365 Or. 556, 451 P.3d 1000 (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 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 , 193 Or. App. 329, 92 P.3d 767, rev. den., 337 Or. 182, 94 P.3d 877 (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 , 567 U.S. at 479-80, 132 S.Ct. 2455. 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. Louisiana , ––– U.S. ––––, ––––, 136 S. Ct. 718, 734-35, 193 L. Ed. 2d 599 (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 , 365 Or. 1, 11, 443 P.3d 597 (2019), cert. dismissed sub nom, Kelly v. White , ––– U.S. ––––, 140 S. Ct. 993, 206 L. Ed. 2d 389 (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 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 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 , 297 Or. App. 126, 441 P.3d 664. 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...