Kinkel v. Persson
Decision Date | 10 February 2016 |
Docket Number | A155449.,13C13698 |
Citation | 367 P.3d 956,276 Or.App. 427 |
Parties | Kipland Philip KINKEL, Petitioner–Appellant, v. Rob PERSSON, Superintendent, Oregon State Correctional Institution, Defendant–Respondent. |
Court | Oregon Court of Appeals |
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.*
, P.J.
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 petitions bars the grounds for relief that petitioner raised in this case and, therefore, we affirm.
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:
or, possibly, a schizoaffective disorder that combines some of the essential features of schizophrenia and depression.
. A large number of petitioner's victims, along with his victims' parents, also spoke at the sentencing hearing regarding the effects of his crimes. "They almost uniformly expressed intense fears of [petitioner] being returned to society and urged that [he] be incarcerated for the remainder of his life for his crimes." Id. at 282–83, 56 P.3d 463.
Petitioner's counsel argued that, in sentencing petitioner, the court had to consider both his mental illness and his youthfulness. With respect to petitioner's age at the time of the crimes, among other things, counsel asserted that imposition of a sentence that would result in petitioner being imprisoned for the rest of his life would constitute cruel and unusual punishment and would, therefore, violate both the United...
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