Kinkel v. Persson, 13C13698

CourtCourt of Appeals of Oregon
Writing for the CourtSERCOMBE, P.J.
Citation367 P.3d 956,276 Or.App. 427
Parties Kipland Philip KINKEL, Petitioner–Appellant, v. Rob PERSSON, Superintendent, Oregon State Correctional Institution, Defendant–Respondent.
Docket NumberA155449.,13C13698
Decision Date10 February 2016

276 Or.App. 427
367 P.3d 956

Kipland Philip KINKEL, Petitioner–Appellant,
Rob PERSSON, Superintendent, Oregon State Correctional Institution, Defendant–Respondent.


Court of Appeals of Oregon.

Argued and Submitted Sept. 15, 2015.
Decided Feb. 10, 2016.

367 P.3d 957

Andy Simrin argued the cause for appellant. With him on the brief was Andy Simrin PC.

Ryan P. Kahn, Assistant Attorney General, argued the cause for respondent. On the brief were Frederick M. Boss, Deputy Attorney General, Anna M. Joyce, Solicitor General, and James M. Aaron, Assistant Attorney General.

Before SERCOMBE, Presiding Judge, and HADLOCK, Chief Judge, and TOOKEY, Judge.*


276 Or.App. 429

When he was 15 years old, petitioner shot and killed both of his parents. The next day, petitioner went to school and shot more than two dozen students, killing two and injuring the others. Once in custody, using a knife, petitioner attacked a police officer. Ultimately, petitioner pleaded guilty to four counts of murder and 25 counts of attempted murder; he pleaded no contest to an additional count of attempted murder based on his attack on the police officer. Following a lengthy sentencing hearing, the trial court sentenced petitioner to four concurrent 25–year prison terms on the murder convictions. On each of the attempted murder convictions, the court sentenced petitioner to a 90–month prison term, with 40 months of each sentence to run consecutively to all other counts. Thus, in the aggregate, petitioner was sentenced to 1,340 months (approximately 112 years) in prison. We affirmed those sentences on direct appeal, and the Supreme Court denied review. See State v. Kinkel, 184 Or.App. 277, 56 P.3d 463, rev. den., 335 Or. 142, 61 P.3d 938 (2002) ( Kinkel I ).

In 2003, petitioner sought post-conviction relief, requesting that the judgment of conviction be set aside and the sentences be vacated. The post-conviction court denied relief and, on appeal from the post-conviction judgment, we affirmed and the Supreme Court, again, denied review. See Kinkel v. Lawhead, 240 Or.App. 403, 246 P.3d 746, rev. den., 350 Or. 408, 256 P.3d 121 (2011) (Kinkel II ).

In 2013, petitioner filed a successive petition for post-conviction relief, asserting that the nearly 112–year sentence imposed by the trial court violates the Eighth Amendment's proscription against cruel and unusual punishments, as explained by Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and Miller v. Alabama, 567 U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Petitioner and defendant (the superintendent) filed cross-motions for summary judgment and, ultimately, the post-conviction court granted the superintendent's motion and entered a judgment dismissing the petition with prejudice. Petitioner appeals the post-conviction court's judgment. As explained below, we conclude that the state statutory rule against successive

276 Or.App. 430

petitions bars the grounds for relief that petitioner raised in this case and, therefore, we affirm.

367 P.3d 958

The relevant facts are not in dispute. As noted, petitioner's convictions arise from the murders of his parents and his "subsequent shooting rampage at Thurston High School in Springfield in May 1998, when petitioner was 15 years old." Kinkel II, 240 Or.App. at 405, 246 P.3d 746. Petitioner entered into a plea agreement under which he pleaded guilty to four counts of murder and 25 counts of attempted murder and pleaded no contest to one count of attempted murder. In exchange, the state agreed to seek concurrent 25–year sentences for the four murder charges. Petitioner acknowledged that, for each count of attempted murder, he would "receive a sentence of 90 months" and that sentencing on those counts would be "open."

At the sentencing hearing, which lasted six days, the court heard evidence regarding petitioner's history and mental illness.1 We described the evidence from the sentencing hearing in Kinkel I:

"Evidence presented at sentencing demonstrated that defendant had been fascinated by weapons and explosives for many years. He had made comments to other students about his ability to build bombs and his desire to shoot people and had expressed admiration for the Unabomber and for a school shooting in Jonesboro, Arkansas. He had suggested to classmates that he might bring a gun to school and start shooting people and that he might bomb the school during a pep rally. Handwritten notations by defendant confirmed his interest in weapons and explosives and also revealed defendant's fantasies of killing people. Those fantasies did not simply focus on individuals, but on killing large numbers of people indiscriminately. Defendant had been disciplined for numerous instances of acting out at school over the course of several years, including various acts of aggression against other students. He had also been disciplined for throwing rocks off a highway overpass onto cars and for shoplifting. He had received a limited amount of mental health treatment for depression in 1997, but that treatment had been discontinued before the 1997–98 school year.

276 Or.App. 431
"After the crimes, defendant was evaluated by numerous medical experts. He reported that he had been hearing voices since he was 12 years old, including a voice that generally advocated violence against others, a second voice that criticized defendant and sometimes advised him to commit suicide, and a third that echoed the words of the other two. Defendant stated that the voice that advocated violence against others, instructed him to commit the murders and attempted murders on May 20 and 21, and he felt he had no choice but to obey the voice. He thought that the voices might have come from a chip that the government had implanted into his head. He also expressed concern that the Walt Disney Company was taking over the country and felt that he needed to be prepared for an invasion by the Chinese. He expressed fears that he was being spied on and concerns that his medications were poisoned. He tried on several occasions, secretively, to avoid taking his medications. The medical experts, for the most part, concluded that defendant suffers from paranoid schizophrenia or, possibly, a schizoaffective disorder that combines some of the essential features of schizophrenia and depression.

"Evidence was adduced at sentencing that a significant number of defendant's blood relatives have suffered from a variety of mental illnesses, including mood disorders, schizoaffective disorders, and schizophrenia. Several had been institutionalized. Expert testimony indicated that the presence of mental illness in defendant's family could have been a contributing factor to his own mental illness.

"The experts who evaluated defendant agreed that he exhibited psychotic symptoms that correlated with the features of paranoid schizophrenia. People who suffer from paranoid schizophrenia often maintain well in school, work, or social situations until delusions, often persecutory in nature, cause them to act out in violent ways. The experts also agreed that there is no cure for paranoid schizophrenia. There are medications, however, that can
367 P.3d 959
control symptoms such as hallucinations and delusions, at least to some degree. One psychologist, Dr. Orin Bolstad, who conducted extensive testing of defendant, opined that some of defendant's symptoms, including hearing voices, had diminished when defendant was given such medication. When asked about defendant's future dangerousness, Bolstad was unable to make a prediction. He did observe,
276 Or.App. 432
however, that defendant's initial response to antipsychotic medication was positive, that defendant was intellectually capable, and that defendant had not presented a management problem while incarcerated, all of which he thought were good prognostic indicators.

"When asked to comment on potential public safety issues if defendant were to be released from prison, Bolstad suggested that defendant might someday be able to be released into the community with safeguards, including requirements that he see a psychiatrist regularly, be tracked by use of a monitoring bracelet, attend support groups, and have his blood and urine monitored to determine whether he was receiving the appropriate amounts of medication. He also suggested that, were defendant to be released from prison after serving 25 years, there might be advances in antipsychotic medications by that time.

"Dr. William Sack, a psychiatrist who examined defendant, concurred that defendant's crimes were the product of a psychotic process that had been building over a long period of time. He believed that defendant's mental illness was treatable, although not curable. Sack rendered an opinion that, if defendant were to receive 25 or 30 years of treatment from a psychiatrist with whom he built a trust relationship, and if defendant were to take medications that obliterated his symptoms, he would not be a danger to society as long as he was carefully monitored. He also felt that, over the

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  • Hardin v. Popoff, A151853
    • United States
    • Court of Appeals of Oregon
    • June 29, 2016
    ...ask whether a claim could reasonably have been raised, not whether that claim could have been raised fruitfully. Cf. Kinkel v. Persson , 276 Or.App. 427, 444, 367 P.3d 956 (2016) (“ORS 138.550(2) and (3) do not only prevent a petitioner from bringing a successive petition for post-convictio......
  • Kinkel v. Persson, CC 13C13698
    • United States
    • Supreme Court of Oregon
    • May 10, 2018
    ...not asserted and could not reasonably be asserted in the direct appellate review proceeding." ORS 138.550(2) ; see Kinkel v. Persson , 276 Or. App. 427, 443, 367 P.3d 956 (2016) (applying that statutory bar). Although petitioner argued that he could not reasonably have raised his Eighth Ame......
  • White v. Premo, A154435
    • United States
    • Court of Appeals of Oregon
    • May 17, 2017
    ...and dismissed the petition. Petitioner appeals the resulting judgment and, on appeal, we conclude, as we did in Kinkel v. Persson , 276 Or.App. 427, 367 P.3d 956, rev. allowed , 359 Or. 525, 379 P.3d 514 (2016), and Cunio v. Premo , 284 Or.App. 698, 395 P.3d 25 (2017), that the statutory ru......
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    • United States
    • Court of Appeals of Oregon
    • May 4, 2016
    ...been raised * * * in an original or amended petition for post-conviction relief, the petitioner must have raised it.” Kinkel v. Persson, 276 Or.App. 427, 444, 367 P.3d 956 (2016) (emphasis in original). Here, the post-conviction court found that petitioner's claims could reasonably have bee......
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