Harned v. Amsberry

• Decision Date: 13 October 2021
• Docket Number: A168535
• Citation: 315 Or.App. 146,499 P.3d 825
• Parties: Patrick HARNED, Petitioner-Appellant, v. Brigitte AMSBERRY, Superintendent, Eastern Oregon Correctional Institution, Defendant-Respondent.
• Court: Oregon Court of Appeals

315 Or.App. 146

499 P.3d 825

Patrick HARNED, Petitioner-Appellant,

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

A168535

Court of Appeals of Oregon.

Argued and submitted June 12, 2020

October 13, 2021

Lindsey Burrows argued the cause for appellant. Also on the briefs was O'Connor Weber LLC.

Jonathan N. Schildt argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge.

SHORR, J.

For a crime he committed at 16 years old, petitioner was convicted of aggravated murder. He was then sentenced to life in prison without the possibility of parole. In this post-conviction relief proceeding, he contends that his sentence violated the Eighth Amendment to the United States Constitution because the sentencing court failed to comply with Miller v. Alabama , 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), which prohibited mandatory life-without-parole sentences for juveniles and established that a sentencer must consider a juvenile homicide offender's youth before imposing a life-without-parole sentence. In light of the United States Supreme Court's recent interpretation of Miller in Jones v. Mississippi , ––– U.S. ––––, 141 S. Ct. 1307, 209 L. Ed. 2d 390 (2021), we conclude that petitioner's sentencing satisfied the requirements of Miller . Accordingly, we affirm.

The relevant facts are procedural and undisputed. When petitioner was 16 years old, he killed a seven-year-old girl. For that crime, petitioner was charged with aggravated murder. Petitioner was tried as an adult, and he waived his right to a jury for the guilt and penalty phases of his trial. The court found petitioner guilty.¹ After petitioner was convicted, the court held a sentencing hearing to determine the appropriate sentence in accordance with ORS 163.150 (1997).² Under that statute, the court was required to sentence petitioner to life imprisonment without the possibility of release or parole unless the court, sitting as factfinder, found that there were "sufficient mitigating circumstances to warrant life imprisonment." ORS 163.150(2)(a), (b) (1997). A sentence of life without the possibility of release or parole, also known as a "true life" sentence, is a life sentence that may not be shortened or reduced "by any judicial officer, [or by] the State Board of Parole and Post-Prison Supervision." ORS 163.105(1)(b).³ Alternatively, a defendant who is sentenced under ORS 163.150 to "life imprisonment" must serve a minimum of 30 years in prison, at which point the defendant may petition to convert the sentence to life with the possibility of parole or release. ORS 163.105(1)(c) ; ORS 163.105(2).⁴

At petitioner's sentencing hearing, petitioner presented mitigating evidence and argued that various mitigating factors warranted a sentence of life with the possibility of parole, including petitioner's youth, difficult home life, a history of physical and psychological abuse by his parents since infancy, sexual abuse at the hands of a registered sex offender, low intelligence, and mental health issues. The state presented rebuttal evidence and asked for a life-without-parole sentence. After considering the evidence, including the evidence presented at the guilt-phase of the trial, the sentencing court discussed the mitigating factors relevant to petitioner's sentence. The court explained that petitioner

"has certainly over the course of the trial and the last two days presented several of those [mitigating] factors, including [petitioner's] youth, his low I.Q., his mental health and background, the fact that he was going through a stressful time just before he killed [the victim]. Certainly he had an up and down and chaotic home life."

The court described how it had considered the mitigating factors alongside the evidence that "detract[ed]" from those factors. The court acknowledged that "certainly [petitioner's] youth is a mitigating factor in this case" but explained that "his behavior is reported to be some of the worst that's been seen in the *** corrections facility" and that petitioner was likely to commit future crimes. As such, the court found that the state had "rebutted" and "in some situations substantially rebutted" the mitigating factors presented by petitioner. Therefore, the court concluded that there were not "sufficient mitigating factors which would allow [it] to impose anything but a full life sentence on [petitioner]." The court sentenced petitioner to life in prison without the possibility of parole or release.

Petitioner challenged his sentence on direct appeal. We affirmed without opinion and the Oregon Supreme Court denied review in 2004. Petitioner filed a timely petition for post-conviction relief in 2005, raising claims of ineffective assistance of trial and appellate counsel.⁵ The post-conviction court denied relief.

Petitioner filed his second petition for post-conviction relief, at issue in this appeal, in 2016 after the United States Supreme Court decided Miller and Montgomery v. Louisiana , 577 U.S. 190, 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016). That petition alleged that petitioner's sentence of life without the possibility of parole

"violates the Eighth and Fourteenth Amendments to the United States Constitution because the state court failed to follow the constitutionally mandated procedural requirements in determining [petitioner's] sentence identified in Miller v. Alabama , *** and established by Montgomery v. Louisiana ."

Specifically, petitioner contended that Miller , as clarified by Montgomery , "rendered life without parole an unconstitutional penalty" for "juvenile offenders whose crimes reflect the transient immaturity of youth." In petitioner's view, those cases required a sentencing court to go beyond consideration of a juvenile offender's chronological age, and to instead "give mitigating effect to the characteristics and circumstances of youth" and impose a life without parole sentence only after determining that the offender "is so beyond repair that he or she is not capable of reform." Petitioner contended that the sentencing court failed to make those determinations and, as such, that he was entitled to a new sentencing hearing.

Respondent argued that petitioner's claim failed, because the sentencing court had discretion to impose a sentence less than life without parole, and properly considered petitioner's youth before imposing that sentence as required by Miller and Montgomery . Respondent also argued that the petition was barred by the procedural limitations in ORS 138.510(3) and ORS 138.550(3), which bar post-conviction relief for claims brought more than two years after the judgment of conviction becomes final and claims brought in successive petitions, respectively. Petitioner contended that, although the petition was untimely and successive, his claim satisfied the "escape clause" in both statutes because the ground for relief could not reasonably have been raised in the prior petition. See ORS 138.510(3) ; ORS 138.550(3).

The post-conviction court denied relief on the grounds that petitioner's claim was procedurally barred under both statutes and that petitioner's claim failed on the merits. On the merits, the court determined that, contrary to petitioner's argument, the sentencing court "did consider transient immaturity" before reaching the conclusion that life without parole was the appropriate sentence. In other words, the post-conviction court determined that, although the sentencing court was not obliged to do so, it "went through all the process" as if Miller and Montgomery were "law at the time."

Petitioner appeals, assigning error to the court's denial of post-conviction relief. Specifically, petitioner challenges the court's conclusions that his claim was procedurally barred and that the sentencing court had complied with the procedural sentencing requirements of Miller and Montgomery . With respect to each of those issues, in the briefing and at argument on appeal, the parties raised essentially the same arguments as before the post-conviction court.

After this case was argued, however, the Supreme Court decided Jones , which further clarified what Miller requires before a juvenile homicide offender may be sentenced to life without parole. In light of those changes, we conclude that petitioner's sentencing proceedings complied with Miller , and we affirm. We explain that conclusion and our view of Jones in detail below. Additionally, because we affirm on the merits, we do not address whether petitioner's claim is procedurally barred. See Kinkel v. Persson , 363 Or. 1, 12-13, 417 P.3d 401 (2018), cert. den. , ––– U.S. ––––, 139 S. Ct. 789, 202 L.Ed.2d 585 (2019) (declining to address whether the petitioner's claim was procedurally barred because, even assuming the petitioner's claim was not barred, the claim failed on the merits). For context, we briefly discuss Miller and that line of precedent, before turning to our examination of Jones , and the parties’ arguments in light of that case.

In 2012, Miller held that the Eighth Amendment "forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders" without affording the sentencer an opportunity to consider the juvenile's youth. 567 U.S. at 479, 132 S.Ct. 2455. In reaching that conclusion, the Supreme Court first looked to prior cases that categorically banned certain sentencing practices, specifically those focused on juveniles, Roper v. Simmons , 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), and Graham v. Florida , 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010). Miller , 567 U.S. at 470, 132 S.Ct. 2455. Those cases established that children are constitutionally different from adults and that "youth matters" for the purposes of sentencing. Id . at 471-73, 132 S. Ct. 2455. And, to the ...