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Kinkel v. Persson

Supreme Court of Oregon

May 10, 2018

KIPLAND PHILIP KINKEL, Petitioner on Review,
Rob PERSSON, Superintendent, Oregon State Correctional Institution, Respondent on Review.

          Argued and submitted September 22, 2016

          On review from the Court CC 13C13698; CA A155449 of Appeals. [*]

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

          Paul L. Smith, Deputy Solicitor General, Salem, argued the cause and fled 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. 2] Case Summary: Petitioner sought post-conviction relief, arguing that, because he was a juvenile when he committed four murders and twenty-six attempted murders, the Eighth Amendment of the United State Constitution prohibits his aggregate sentence of nearly 112 years in prison, which is the functional equivalent of a life sentence without the possibility of parole. The trial court denied petitioner relief in a decision that the Court of Appeals affirmed.

         Held: Petitioner's sentence did not violate the Eighth Amendment, as applied in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), because the sentencing court found that petitioner's crimes were the result of an incurable psychological disorder, making petitioner a juvenile offender whose crimes reflect irreparable corruption rather than the transience of youth.

         The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

          [363 Or. 3] KISTLER, J.

         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, ___ US ___, 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 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.

         I. FACTS

         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.

         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]

          [363 Or. 7] The plea petition recites that petitioner was aware that, as a result of his plea, the trial court was "bound and shall impose a 300 month sentence (25 years) on each [of the four convictions of murder] with those sentences to be served concurrently." Regarding the remaining 26 counts of attempted murder, petitioner acknowledged that he would receive a mandatory sentence of 90 months on each count, that the trial court was not bound to order that the sentences be served concurrently, and that each side was free to argue for consecutive or concurrent sentences.

         The sentencing court held a six-day hearing to determine whether the sentences on the 26 attempted murder charges should be concurrent or consecutive. At the hearing, the court considered a presentence investigation report that detailed petitioner's background. It heard an abbreviated recitation of the events that occurred at the high school and also what the officers found when they went to petitioner's home after the shooting. In addition to describing the discovery of his parents' bodies and evidence regarding the manner of their death, the officers described the writings they found in petitioner's room, books they found in his room discussing making explosive devices, and multiple explosive devices secreted throughout petitioner's home.

         In mitigation, petitioner submitted evidence from his sister, former teachers, and neighbors who commented on positive aspects of his character. The majority of petitioner's mitigation evidence, however, consisted of expert testimony regarding his mental health. His experts presented evidence that petitioner had been hearing voices for the past three years and that one of the voices had commanded him to commit the murders and attempted murders. Although acknowledging some difficulties in diagnosing adolescents, petitioner's medical experts concluded that he suffered from paranoid schizophrenia or a schizo affective disorder that combines some of the essential features of schizophrenia and depression.

         One of petitioner's experts, Dr. Sack, is a child and adolescent psychiatrist who previously chaired the department of child psychiatry at Oregon Health Sciences University. Sack concluded that, although he could not [363 Or. 8] "pigeonhole [petitioner] into one psychotic box or the other, " petitioner's "crimes and his behavior on [May 20 and 21] were directly the product of a psychotic process that had been building intermittently in him over a three-year period."[4] He explained that petitioner's psychosis was treatable, but he cautioned that he could not "claim that it's curable." That is, the psychosis could be managed if petitioner recognized it and accepted treatment, but if petitioner did not treat the psychosis, "he would be a dangerous person." As Sack explained, the "crime [that petitioner committed] is so bizarre, and it so fits with what we know about paranoid schizophrenics, who are dangerous people."

         Another of petitioner's experts, Dr. Bolstad, is a psychologist who works extensively with juvenile offenders. He agreed with Sack that petitioner's condition could be treated and that, with continued treatment and supervision, petitioner could be a candidate for release. However, Bolstad also agreed with Sack that petitioner's condition could not be cured. As he testified on cross-examination, "I personally don't think there is any way of curing [petitioner's] disorder. There's not a cure for it, okay? I do think it can be managed, " principally with psychotropic medicine. Bolstad then added:

"Real frankly, I would not want to see [petitioner] out on the streets, ever, with this condition, okay? Without medicine and without an awful lot of structure and support services arranged for him."[5]

         Petitioner also argued that the trial court should consider his youth when imposing his sentence. More specifically, he incorporated the arguments that he previously had made against imposing a life sentence without possibility of parole for aggravated murder and contended that those same considerations applied equally to imposing consecutive sentences that were equivalent to a life sentence without the possibility of parole. In making that argument, petitioner's [363 Or. 9] counsel advanced virtually the same arguments that later informed the Court's decision in Miller; that is, he argued that Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988), which had categorically prohibited imposing the death penalty on juveniles under 16 years of age, should be extended to aggregate sentences imposed on a juvenile that were equivalent to a life sentence without the possibility of parole.[6]

         In addition to those considerations, the court also heard from the surviving students who had been shot, as well as from the students' parents. Each of the students who spoke told the court how petitioner's actions had affected their lives-the loss of their classmates, the loss of the use of their limbs, the loss of part of their childhood, and their difficulty trying to come to terms with that loss. Some parents spoke of losing their children. Others spoke of coming to the school on learning of the shooting, waiting to hear whether their children had been shot, and, if their children had been shot but survived, the difficulty of coping with their children's injuries and trying to move past the harm that petitioner had inflicted on their families.

         In determining the appropriate sentence, the trial court began by comparing petitioner's case to the cases of two young homicide offenders[7] who previously had been before the court. One had received a 25-year sentence; the other, a sentence of life with the possibility of parole after 30 years, conditioned on the availability of treatment and other safeguards to ensure that the offender was no longer a danger to society. The court explained that the facts in those cases "pale[d] in the light of the facts" in petitioner's case and concluded that a similar sentence would not be "proportional to those sentences or to these present facts."

         The court recognized that petitioner's experts had "necessarily and appropriately focused on [petitioner] and on his condition, " and that they "generally agree[d] that with extensive, long-term treatment, they would not expect [363 Or. 10');">363 Or. 10] him to be dangerous to others." The court observed, however, that petitioner's experts had agreed that, "[u]ntreated, or I suppose improperly or incompletely treated, [petitioner] is and remains dangerous." The sentencing court noted that "[o]ne of the last things Dr. Bolstad said was to the effect that there is no cure for [petitioner's] condition, that he should never be released without appropriate medication and-I quote-'an awful lot of structure and appropriate support services arranged for him.'"

         After expressing concern that the system might not be able to provide the necessary level of treatment and support, the court observed that, given the mandatory nature of the sentences for attempted murder, it lacked the flexibility to "structure any kind of long-range conditional sentence." The court added, however, that, even if it had that authority, it would not be appropriate to exercise it. The court explained that, after listening to the effect that petitioner's actions had had on his classmates and their families, "[i]t became very apparent yesterday that this sentence needed to account for each of the wounded, who rightly call themselves survivors, and for [petitioner] to know that there was a price to be paid for each person hit by his bullets."

         The trial court accordingly divided each mandatory 90-month sentence for attempted murder into two parts. It provided that 40 months of each 90-month sentence would run consecutively to each other and to the four 25-year concurrent sentences for murder, while 50 months of each of those 26 sentences would run concurrently. The sentencing court structured the aggregate sentence to ensure that petitioner would serve 40 months (three-and-one-third years) for each of the students whom he shot with the intent to kill, for the student whom he attempted to shoot in the head but ran out of bullets, and for the officer whom he charged with a knife. As noted, imposing a consecutive 40-month sentence on each of petitioner's 26 attempted murder convictions, when run consecutively to his four concurrent 25-year sentences for murder, results in an aggregate sentence of slightly less than 112 years.

         Petitioner challenged his aggregate sentence on direct appeal, contending primarily that it violated [363 Or. 11');">363 Or. 11] Article I, section 16, of the Oregon Constitution. He added in a footnote that his "true-life sentence violates the Eighth Amendment's ban on cruel and unusual punishment, for it is 'grossly disproportionate' to the crime." (Quoting Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991).) The Court of Appeals rejected petitioner's state constitutional argument, as well as his Eighth Amendment claim. State v. Kinkel, 184 Or.App. 277, 56 P.3d 463, rev den, 335 Or. 142, 61 P.3d 938 (2002). A year later, petitioner filed a timely post-conviction petition, challenging his conviction. The post-conviction court denied that petition, the Court of Appeals affirmed, and this court denied review. Kinkel v. Lawhead, 240 Or.App. 403, 246 P.3d 746, rev den, 350 Or. 408, 256 P.3d 121 (2011).

         The United States Supreme Court did not issue its decision in Miller until 2012, approximately a year after petitioner's first post-conviction petition had become final. After the Court decided Miller, petitioner filed a second post-conviction petition, once again raising an Eighth Amendment challenge to his sentence but this time relying on the reasoning in Miller. The post-conviction court ruled that the state post-conviction statutes barred petitioner from raising his Eighth Amendment claim in his second post-conviction petition because he reasonably could have raised that ground for relief in his first post-conviction petition. See ORS 138.550(3) (prohibiting successive petitions if the ground for relief reasonably could have been raised in the preceding petition).

         The Court of Appeals affirmed the post-conviction court's judgment, but it did so based on a related procedural statute, ORS 138.550(2). That subsection provides that "no ground for relief may be asserted by [a] petitioner in a petition for review under [Oregon's post-conviction statutes] unless such ground was 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 Amendment claim until after the United States Supreme Court decided Miller, the Court [363 Or. 12');">363 Or. 12] of Appeals explained that petitioner had in fact raised that ground for relief on direct appeal. Id. at 442-44.

         Following this court's decision in Verduzco, the Court of Appeals reasoned that the fact that Miller had not yet been decided when petitioner filed his direct appeal did not mean that the procedural bar in ORS 138.550(2) was inapplicable. Id. It also rejected petitioner's argument that federal law, as a result of the Court's decision in Montgomery, overrode the procedural bar set out in ORS 138.550(2). Kinkel, 276 Or.App. at 438 n 6. The Court of Appeals accordingly affirmed the post-conviction court's judgment. We allowed this petition for review to consider whether petitioner's Eighth Amendment claim is procedurally barred in state court and, if not, whether his aggregate sentence violates the Eighth Amendment.

         II. ORS 138.550(2)

         The state argues that ORS 138.550(2) provides a complete answer to petitioner's Eighth Amendment claim. It contends, and the Court of Appeals agreed, that ORS 138.550(2) precludes petitioner from relitigating in a state post-conviction proceeding the same ground for relief that he litigated on direct appeal.[8] Petitioner responds that the United States Supreme Court decisions interpreting the Eighth Amendment underwent a fundamental shift after he filed his opening brief on direct appeal in 2001. He contends that the Eighth Amendment claim that he is raising now differs from the claim he raised at his sentencing hearing and that his current claim could not reasonably have been raised or adjudicated in 2001. It follows, he concludes, that ORS 138.550(2) does not bar the state courts from reaching the federal claim that he raised in his second post-conviction petition.

         We need not resolve the parties' procedural arguments to decide this case. Even if we assume that petitioner [363 Or. 13');">363 Or. 13] is not procedurally barred from relitigating his Eighth Amendment claim on state post-conviction, we conclude that the Court of Appeals decision may be affirmed on an alternative ground. Petitioner's Eighth Amendment challenge to his sentence fails on the merits. Before explaining why we reach that conclusion, we first describe two lines of Eighth Amendment authority. One involves categorical Eighth Amendment limits on juvenile sentencing; the other, the limits that the Eighth Amendment places on a court's ability to impose consecutive sentences for multiple crimes. We then explain why we conclude that, in light of the sentencing court's findings, petitioner's aggregate sentence complies with the Eighth Amendment.


         Eighth Amendment proportionality cases "fall within two general classifications." Graham v. Florida, 560 U.S. 48, 59, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). One involves challenges to a term of years in light of all the circumstances of a particular case. Id. at 59-60 (citing Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983)). The other involves categorical limits on certain sentencing practices. Id. at 61. In this case, petitioner argues that the categorical rule announced in Miller applies to his aggregate sentence. In analyzing petitioner's argument, we accordingly focus on the Court's cases that have announced categorical rules for sentencing juvenile offenders.

         A. Categorical sentencing limitations

         Generally, in determining whether a categorical rule applies, the Court has looked to "objective indicia of society's standards, as expressed in legislative enactments and state practice, " and it also has relied on its own "exercise of independent judgment [regarding proportionality, which entails] consideration of the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question." See Graham, 560 U.S. at 61, 67 (internal quotation marks and citation omitted). The Court looked to both considerations in concluding that juveniles are not eligible for the death penalty, Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 [363 Or. 14] L.Ed.2d 1 (2005), and that juveniles convicted of a non-homicide offense may not be sentenced to life imprisonment without the possibility of parole, Graham, 560 U.S. at 75. In contrast to Roper and Graham, the Miller Court relied on a proportionality analysis in holding that not every juvenile who commits a murder is eligible for life imprisonment without the possibility of parole. Miller, 567 U.S. at 479.[9] Only those juveniles whose homicide reflects irreparable corruption rather than the transience of youth are eligible for a life sentence without possibility of parole. See Montgomery, 136 S.Ct. at 734 (interpreting Miller).

         Following Miller, petitioner relies solely on a proportionality analysis in arguing that the rule from that case applies to his sentence. Because petitioner does not identify any objective indicia of society's standards to support his categorical Eighth Amendment claim, we limit our discussion to the proportionality analyses in Roper, Graham, and Miller. Although those analyses are similar in many respects, they also differ in ways that bear on petitioner's Eighth Amendment argument. Accordingly, we first describe ...

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