Kinkel v. Persson, CC 13C13698

CourtSupreme Court of Oregon
Writing for the CourtKISTLER, J.
Citation363 Or. 1,417 P.3d 401
Parties Kipland Philip KINKEL, Petitioner on Review, v. Rob PERSSON, Superintendent, Oregon State Correctional Institution, Respondent on Review.
Docket NumberCC 13C13698,SC S063943
Decision Date10 May 2018

363 Or. 1
417 P.3d 401

Kipland Philip KINKEL, Petitioner on Review,
Rob PERSSON, Superintendent, Oregon State Correctional Institution, Respondent on Review.

CC 13C13698
SC S063943

Supreme Court of Oregon.

Argued and submitted September 22, 2016.
May 10, 2018

Andy Simrin, Andy Simrin PC, Portland, argued the cause and filed the brief for petitioner on review.

Paul L. Smith, Deputy Solicitor General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Frederick M. Boss, Deputy Attorney General, and Benjamin Gutman, Solicitor General.

Before Balmer, Chief Justice, and Kistler, Walters, Nakamoto, and Flynn, Justices, and Landau, Senior Justice, Justice pro tempore, and Egan, Chief Judge of the Oregon Court of Appeals, Justice pro tempore.**


363 Or. 3

Petitioner pled guilty to four counts of murder and 25 counts of attempted murder, as well as pleading no contest to a twenty-sixth count of attempted murder. As part of a plea bargain, petitioner and the state agreed that he would receive concurrent 25-year sentences for the four murders. They also agreed that each side would be free to argue that the mandatory 90-month sentences for each of the attempted murders should run consecutively or concurrently. After a six-day sentencing hearing, the trial court ordered that 50 months of each 90-month sentence for attempted murder would run concurrently but that 40 months of each of those sentences would run consecutively to each other and to the four concurrent 25-year sentences. As a result of that ruling, petitioner's aggregate sentence totals slightly less than 112 years.

In this post-conviction proceeding, petitioner argues that, because he was a juvenile when he committed his crimes, the Eighth Amendment prohibits the imposition of an aggregate sentence that is the functional equivalent of a life sentence without the possibility of parole. Petitioner's federal argument entails primarily three issues. The first is whether, as a matter of state law, petitioner's Eighth Amendment claim is procedurally barred. See ORS 138.550(2) (barring post-conviction petitioners from raising grounds for relief that were or reasonably could have been raised on direct appeal); Verduzco v. State of Oregon , 357 Or. 553, 355 P.3d 902 (2015) (applying a related statute). If it is, the second issue is whether Montgomery v. Louisiana , ––– U.S. ––––, 136 S.Ct. 718, 193 L.Ed. 2d 599 (2016), requires this court to reach petitioner's Eighth Amendment claim despite the existence of that state procedural bar. Third, if petitioner's Eighth Amendment claim is not procedurally barred, the remaining issue is whether and how Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed. 2d 407 (2012), applies when a court imposes an aggregate sentence for multiple crimes committed by a juvenile.

As explained below, we hold that, even if ORS 138.550(2) does not pose a procedural bar to petitioner's Eighth Amendment claim, his claim fails on the merits.

363 Or. 4

More specifically, the issue in Miller was whether the Eighth Amendment prohibited a juvenile from being sentenced to life imprisonment without the possibility of parole for a single homicide. The Court held that such a sentence could be imposed but only if the trial court found that the crime reflected irreparable corruption rather than the transience of youth. The Court did not consider in Miller whether a juvenile who has been convicted of multiple murders and attempted murders, as in this case, may be sentenced to an aggregate

417 P.3d 403

consecutive sentence that is the equivalent of life without the possibility of parole. This case thus poses a different issue from the issue in Miller . Beyond that, we conclude that the facts in this case, coupled with the sentencing court's findings, bring petitioner within the narrow class of juveniles who, as Miller recognized, may be sentenced to life without the possibility of parole.


On May 20, 1998, when petitioner was 15 years old, he was sent home from high school for bringing a gun to school. Later that day, he shot his father once in the head. Afterwards, he shot his mother five times in the head and once in the heart. He left their bodies in the house but covered each with a sheet. The next morning, petitioner got the morning paper, had a bowl of cereal, and later drove his mother's car to the high school. Petitioner wore a trench coat, under which he concealed three guns: a Ruger .22 pistol with a ten-round clip; a Ruger 10/22 rifle with a banana clip that held 50 rounds; and a Glock 9 mm pistol. The stock of the rifle had been modified to create a pistol grip, which allowed the rifle to be concealed more easily.

As petitioner entered a breezeway at school, he called to one of his friends and told him not to go into the cafeteria that day. He then began walking forward, took the rifle out of his trench coat, pointed it at a classmate's head, and pulled the trigger. When the rifle misfired, he "was like mad and upset." After adjusting the rifle, he "[s]hot [the student] in the back of the head." Petitioner then "turned and started walking south * * * towards the cafeteria" until he came upon another student whom he shot in the face.

363 Or. 5

After that, he "just walked forward to the cafeteria door and opened up the door and started shooting."

One of the students in the cafeteria thought "it was a joke or something" until he realized that "there was blood coming from [another student]." One student stood up when petitioner began shooting, and petitioner shot her in the head. As another student testified, "it look[ed] lik[e] he aimed at her head." Petitioner began "walking towards the center of the cafeteria and shooting towards the line where people [we]re getting food and snacks." One student dove under a table, and petitioner "walked up and shot that person" in the head. Petitioner then started shooting towards the door "where there's some more kids standing by a table." He put the rifle to a classmate's head and pulled the trigger, but there were no more bullets in the clip. At that point, two students "jump[ed] up and tackle[d]" petitioner. Although petitioner shot one of those students, they were able to subdue petitioner and take his guns.

That day, petitioner killed two students. Two of the students whom he shot in the head survived but were permanently affected. Of the remaining students whom petitioner shot, some nearly died, others were injured in ways that substantially impaired them, while still others recovered physically from their bullet wounds. As a result of petitioner's actions, the state charged him with, among other things, four counts of aggravated murder and 26 counts of attempted aggravated murder. The four counts of aggravated murder were based on killing his parents one day and two students the next day. Twenty four of the 26 counts of attempted aggravated murder were based on the 24 students whom petitioner allegedly shot and wounded but did not kill.1 One count of attempted aggravated murder was

363 Or. 6

based on the student whom he attempted to kill but did not because the clip ran out of bullets. The final count of attempted aggravated murder arose when, after his arrest, petitioner attempted to kill a police officer with a knife that he had concealed on his person.

417 P.3d 404

Before trial, petitioner moved to dismiss the aggravated murder charges, arguing that "[t]he possibility of a sentence of life in prison without the possibility of parole for a fifteen year old convicted of murder constitutes cruel and unusual punishment in violation of * * * the Eighth Amendment to the U.S. Constitution." The arguments that petitioner advanced in the memorandum in support of his motion paralleled the arguments that the United States Supreme Court later found persuasive in Miller ; that is, he argued that the prohibition on sentencing a 15-year old to death should be extended to life without the possibility of parole because of the immaturity of juveniles and their possibility for change. Based on that argument, petitioner asked the sentencing court to declare Oregon's aggravated murder statutes "unconstitutional insofar as these statutes extend the possibility of a true life sentence [a life sentence without the possibility of parole] to a fifteen year old convicted of aggravated murder." The sentencing court denied petitioner's motion to dismiss, and petitioner entered into the plea agreement.

As part of that agreement, petitioner pled guilty to the lesser included offenses of murder and attempted murder. Under Oregon law, his plea meant that petitioner admitted intentionally killing the four people whom he shot and intending to kill the nearly two dozen students whom he shot and wounded and the one student whom he attempted to shoot.2 Additionally, petitioner stated as part of his plea that, "[b]y permitting the Court to enter a guilty plea on my behalf, I knowingly waive the defenses of mental disease or defect, extreme emotional disturbance, or diminished capacity."3


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