State v. Link

Decision Date17 April 2019
Docket NumberA163518
Citation297 Or.App. 126,441 P.3d 664
Parties STATE of Oregon, Plaintiff-Respondent, v. Justin Alan LINK, Defendant-Appellant.
CourtOregon Court of Appeals

Marc D. Brown, Deputy Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before DeVore, Presiding Judge, and Tookey, Judge, and James, Judge.


Under ORS 137.707(1), when a juvenile is charged with aggravated murder, that juvenile is automatically prosecuted as an adult, in adult criminal court, without regard to the qualities of youth that might be applicable to the accused. Once in adult criminal court, the youth is treated as any adult accused of aggravated murder would be treated. Aggravated murder, as defined in ORS 163.095, is the most serious crime in Oregon and the only permissible punishments for that crime, as provided in ORS 163.105, are, correspondingly, the harshest: death, life imprisonment without the possibility of release or parole, or life imprisonment. In this case, we are asked to determine the constitutionality, under the Eighth Amendment to the United States Constitution, of a sentence—specifically, life imprisonment—imposed on a juvenile offender pursuant to ORS 163.105, when such a sentence is imposed without regard to the individual characteristics of the juvenile defendant. Relying on the principles articulated by the United States Supreme Court in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and, Roper v. Simmons , 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), we conclude that the imposition of life imprisonment, under ORS 163.105, on juvenile offenders without individualized considerations of youth by the sentencing court, is unconstitutional under the Eighth Amendment. Accordingly, we vacate the sentence imposed in this case and remand for further proceedings in accordance with this opinion.


This case has a long history. The underlying facts and much of the procedural history have been previously related in other opinions. As such, we repeat them only minimally here. When defendant was a teenager, he and four friends went on a crime spree that included stealing a car belonging to one friend’s mother and then killing her to conceal the robbery.

Defendant was convicted, after a bench trial, on multiple felony counts. Counts 1 through 5 adjudicated defendant guilty of aggravated murder, ORS 163.095, on different theories. Counts 1 through 3 alleged aggravated felony murder under ORS 163.095(2)(d). Counts 4 and 5 each alleged aggravated murder under ORS 163.095(2)(e), a murder "committed in an effort to conceal the commission of a crime, or to conceal the identity of the perpetrator of a crime."

In defendant’s first appeal, State v. Link , 214 Or. App. 100, 110, 162 P.3d 1038 (2007) ( Link I ), we held, among other dispositions, that the guilty adjudications on Counts 2 through 5 should have merged with the adjudication on Count 1, yielding a single conviction for aggravated murder.

The Oregon Supreme Court allowed review. In State v. Link , 346 Or. 187, 208 P.3d 936 (2009) ( Link II ), the Oregon Supreme Court concluded that we should have reached the merits of defendant’s arguments concerning his convictions on Counts 1 through 3 because, in part, "whether a person is guilty as charged has an independent significance that cannot be foreclosed by later merger." Id. at 202, 208 P.3d 936. The court further concluded that defendant was entitled to an acquittal on those three counts, which were based on defendant having personally murdered the victim. As the court described:

"Here, the act of homicide was one act—the act of shooting—committed by one person—Koch. Even if, as the state argues, the defendant was the leader of the group, he remained outside the house and was not physically present when Koch committed that act. Defendant did not perform the shooting himself."

Id. at 211, 208 P.3d 936. The court’s disposition read as follows:

"The decision of the Court of Appeals is affirmed in part and reversed in part. The judgment of the circuit court is affirmed in part and reversed in part, and the case is remanded to the circuit court for further proceedings."

Id. at 212, 208 P.3d 936. The court affirmed the remainder of our disposition, which had vacated and remanded for merger and resentencing on counts other than Counts 1 through 3.

On remand, the trial court refused to provide defendant with a new sentencing proceeding. Instead, the trial court entered an amended judgment reflecting that defendant was acquitted on Counts 1 through 3. The amended judgment stated that defendant was receiving a life sentence on Count 4. It then merged Counts 5 through 10 (aggravated murder and conspiracy to commit aggravated murder) into Count 4 for sentencing purposes. The trial court did not change the sentences on the remaining offenses, except that it merged Counts 15 through 17 (robbery) into Count 4 for sentencing purposes. The amended judgment also merged Counts 19 through 20 into Count 18 (burglary) for sentencing purposes and the sentence on Count 18 was made concurrent with the sentence on Count 4.

In State v. Link , 260 Or. App. 211, 317 P.3d 298 (2013) ( Link III ), we "vacated and remanded for merger into a single conviction for aggravated murder" Counts 4 through 12; "vacated and remanded for merger into a single conviction for first-degree burglary" Counts 18 through 20; and "remanded for resentencing." Id. at 217, 317 P.3d 298. The trial court was "otherwise affirmed." Id.

The case currently before us arises from the remand to the sentencing court following our disposition in Link III . Before the sentencing court, defendant, by way of motion, challenged the imposition of a life sentence, arguing, in part, that "[t]he sentencing structure of ORS 163.105 - 163.150 for juveniles (at the time of the crime) convicted of aggravated murder violates Miller v. Alabama , the Eighth Amendment of the United States Constitution, and Article I, section 16, of the Oregon Constitution." The trial court denied the motion and imposed a sentence that included the following:1

"On Count 4, Aggravated Murder, ORS 163.095 :
"* * * * *
"Defendant shall serve a LIFE SENTENCE, pursuant to ORS 163.105(1)(c), the defendant shall be confined for a minimum of 30 years without possibility of parole, release to post-prison supervision, release on work release or any form of temporary leave or employment at a forest or work camp. The defendant is remanded to the physical custody of the Department of Corrections for service of this sentence."

(Capitalization in original.)

Thus, this case comes before us again, still in the posture of direct appeal. On appeal, defendant partially renews his arguments before the sentencing court, but abandons his reliance on Article I, section 16, and asserts:

"In this case, the trial court sentenced defendant, a juvenile, to a mandatory prison sentence of 30 years pursuant to ORS 163.105. Like the sentence that the United States Supreme Court found unconstitutional in Miller and the sentence that the Iowa Supreme court found unconstitutional in Lyle , the mandatory sentence imposed here, by its nature, ‘preclude[s] a sentencer from taking account of an offender’s age and the wealth of characteristics and circumstances attendant to it.’ Miller , 567 U.S. at 476 . Because ORS 163.105 does not allow the sentencing court to take into account the offender’s age and other age-related characteristics and circumstances as required by Miller and indicated by Lyle , a mandatory prison term imposed on juveniles pursuant to ORS 163.105(1)(c) violates the cruel and unusual punishment clause of the Eighth Amendment."

In response, the state agrees that defendant preserved the arguments he advances on appeal but disputes the merits of those arguments. First, according to the state, Roper , Graham , and Miller can only be read to concern two specific sentences: death and life without parole. Alternatively, argues the state, even if Miller does apply to a life sentence imposed on a juvenile under ORS 163.105, the murder review hearing held 30 years after sentencing, pursuant to ORS 163.105(2), is a sufficient procedural opportunity to consider the Miller factors of youth, such as to render ORS 163.105 constitutional in its application to juvenile defendants. The arguments now framed, we turn to the merits.

A. Roper, Graham, and Miller

Eighth Amendment proportionality cases "fall within two general classifications." Graham , 560 U.S. at 59, 130 S.Ct. 2011. The first is a challenge to a term of years in light of all the circumstances of a particular case. Id . ; see Solem v. Helm , 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). The second involves categorical limits on certain sentencing practices. Graham , 560 U.S. at 60, 130 S.Ct. 2011. Here, defendant is raising that second variety, asserting that the Eighth Amendment prohibits the imposition of a sentence under ORS 163.105 —as it is currently constructed—on a juvenile offender. We review the constitutionality of the imposition of a sentence for errors of law. State v. Cook , 108 Or. App. 576, 580, 816 P.2d 697 (1991), rev. den. , 312 Or. 588, 824 P.2d 417 (1992).2

In Roper , the United States Supreme Court recognized that "the unique characteristics of juveniles made that class of offenders ineligible for the death penalty." Kinkel v. Persson , 363 Or. 1, 14, 417 P.3d 401 (2018) (relying on Roper , 543 U.S. at 569, 125 S.Ct. 1183 ). Roper affirmed that "[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in...

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  • State v. McCleese
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    • August 23, 2019
    ...does not consider whether a juvenile offender "was less blameworthy due to their youth at the time of the offense." State v. Link , 297 Or. App. 126, 151, 441 P.3d 664 (2019) ; see id., at 149–52, 441 P.3d 664 (holding that murder review hearing under Or. Rev. Stat. § 163.105 [2015] after t......
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    ...was sentenced violates the Eighth Amendment to the United States Constitution. The Court of Appeals agreed. State v. Link , 297 Or. App. 126, 128, 441 P.3d 664 (2019) ( Link IV ). We allowed the state's petition for review. For the reasons that follow, we reverse the decision of the Court o......
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