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State v. Link

Court of Appeals of Oregon

April 17, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
JUSTIN ALAN LINK, Defendant-Appellant.

          Argued and submitted September 7, 2018

          Deschutes County Circuit Court 01FE0371AB; Alta Jean Brady, Judge.

          Marc D. Brown, Deputy Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce 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.

         Sentence on Count 4 vacated; remanded for resentencing, otherwise affirmed. Tookey, J., dissenting.

         Case Summary: Defendant appeals from a judgment of conviction for aggravated murder. ORS 163.095. He assigns error to the imposition of a mandatory life sentence pursuant to ORS 163.105. On appeal, defendant argues that, as a juvenile, the imposition of such a sentence without the individualized considerations of the qualities of youth by the sentencing court violates the Eighth Amendment to the United States Constitution as articulated in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). The state responds that Miller is limited to two types of sentences-death and life without parole-and neither is applicable in this case. Alternatively, the state contends that the sentence imposed on defendant contains a procedural mechanism that allows for the individualized considerations of the qualities of youth: namely, the murder review hearing, which would be held no earlier than 30 years after the imposition of the [297 Or.App. 127] sentence pursuant to ORS 163.105(2). Held: For sentencing purposes, a court cannot impose the state's most severe penalties on a juvenile offender without individualized considerations of the unique qualities of youth that might make imposition of that sentence inappropriate. In this case, the trial court imposed a mandatory sentence of life in prison pursuant to ORS 163.105-one of the state's most severe sentences-on a juvenile offender without an individualized consideration of his unique qualities of youth. The possibility of a murder review hearing by the parole board 30 years in the future was not a constitutionally adequate substitution for that consideration. Moreover, the several statutes that comprise the Oregon scheme for imposition of the severe sentence options for aggravated murder on a juvenile fail the procedural obligation-the affirmative duty-to assess the role of youth at the time of sentencing in order to determine a constitutionally proportionate sentence. As such, the Court of Appeals concluded that the application of ORS 163.105 as written, to a juvenile defendant, violated the Eighth Amendment.

         Sentence on Count 4 vacated; remanded for resentencing, otherwise affirmed.

         [297 Or.App. 128] JAMES, J.

         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.

         I. BACKGROUND

         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 [297 Or.App. 129] 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. 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. 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. 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 [297 Or.App. 130] 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. 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.)

         [297 Or.App. 131] 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. 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. Here, defendant is raising that second variety, asserting that the Eighth Amendment prohibits [297 Or.App. 132] 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 (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). Roper affirmed that "[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable [297 Or.App. 133] among the young. These qualities often result in impetuous and ill-considered actions and decisions." 543 U.S. at 569 (internal quotation marks omitted).

         In addition, Roper noted that "juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure. *** This is explained in part by the prevailing circumstance that juveniles have less control, or less experience with control, over their own environment." Id. (citation omitted). The Court noted as well that "the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed." Id. at 570. Roper concluded that the qualities of youth

"render suspect any conclusion that a juvenile falls among the worst offenders. The susceptibility of juveniles to immature and irresponsible behavior means their irresponsible conduct is not as morally reprehensible as that of an adult. *** From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed."

Id. (internal quotation marks omitted).

         Five years after Roper categorically prohibited the imposition of the death penalty on juveniles, the Court took up the issue of the constitutionality of juvenile life imprisonment for nonhomicide offenses in Graham. 560 U.S. at 52. Although Graham arrived at a flat ban on life without parole for nonhomicide crimes, it did so after considering potential procedural solutions. Critically, Graham opined that "[a]n offender's age is relevant to the Eighth Amendment, and criminal procedure laws that fail to take defendants' youth-fulness into account at all would be flawed." Id. at 76.

         Finally, in Miller, the Court built upon Roper and Graham in considering the constitutionality of life without parole for juvenile homicide crimes. Miller, 567 U.S. at 465. The Court noted that the reasoning of Roper and Graham was not confined to the particular sentences (death in Roper) or crimes (nonhomicide in Graham) involved in those cases.

[297 Or.App. 134]" [N] othing that Graham said about children is crime-specific. Thus, its reasoning implicates any life-without-parole sentence for a juvenile, even as its categorical bar relates only to nonhomicide offenses. Most fundamentally, Graham insists that youth matters in determining the appropriateness of a lifetime of incarceration without the possibility of parole. The mandatory penalty schemes at issue here, however, prevent the sentencer from considering youth and from assessing whether the law's harshest term of imprisonment proportionately punishes a juvenile offender."

Miller, 567 U.S. at __. Miller then distilled, in a precise and emphatic manner, what the "foundational principle" of those three cases was, holding that a state sentencing scheme cannot contravene "Graham's (and also Roper's) foundational principle: that imposition of a State's most severe penalties on juvenile offenders cannot proceed as though they were not children." Id. at 474 (emphasis added). The language in that holding is significant. Miller explicitly did not limit itself to death, or life without parole. It could have easily done so, and did not. Instead, Miller grounded its "foundational principle" within the broader category of "a State's most severe penalties." Id.

         Thus, Roper, Graham, and Miller work to ensure that sentences are proportionate under the Eighth Amendment by announcing both substantive and procedural limitations on the sentencing of juveniles. First, sentences of death are substantively prohibited as constitutionally disproportionate when applied to juveniles. Second, sentences of life imprisonment without parole are substantively prohibited as constitutionally disproportionate when applied to juveniles for nonhomicide offenses. Third, sentences of life imprisonment without parole for homicide offenses are substantively limited-being constitutionally disproportionate when imposed on almost all juveniles, but for "the rare juvenile offender whose crime reflects irreparable corruption." Graham, 560 U.S. at 73 (internal quotation marks omitted). And, finally, any sentence that is among the "[s]tate's most severe" is procedurally limited. Such a "severe" sentence cannot be imposed on a juvenile "as though they were not children." Miller, 567 U.S. at 474. That is, such a sentence cannot be imposed without the sentencer being afforded the ability [297 Or.App. 135] to consider youth. "An offender's age is relevant to the Eighth Amendment, and criminal procedure laws that fail to take defendants' youthfulness into account at all [are] flawed." Graham, 560 U.S. at 76. In other words, Eighth Amendment proportionality imposes a positive duty-a requirement upon the sentencer before imposing a severe sentence-to consider the lessened culpability of a juvenile offender and the lesser "likelihood that a juvenile offender forever will be a danger to society." Montgomery v. Louisiana, __US__, __, 136 S.Ct. 718, 733, 193 L.Ed.2d 599 (2016) (internal quotation marks omitted). Only through the consideration of youth is a constitutionally proportionate sentence assured.

         Our reading of Roper, Graham, and Miller is in keeping with other states. The Iowa Supreme Court held that

"Miller effectively crafted a new subset of categorically unconstitutional sentences: sentences in which the legislature has forbidden the sentencing court from considering important mitigating characteristics of an offender whose culpability is necessarily and categorically reduced as a matter of law, making the ultimate sentence categorically inappropriate. This new subset carries with it the advantage of simultaneously being more flexible and responsive to the demands of justice than outright prohibition of a particular penalty while also providing real and substantial protection for the offender's right to be sentenced accurately according to their culpability and prospects for rehabilitation."

State v. Lyle, 854 N.W.2d 378, 386 (Iowa 2014). Ultimately relying on Roper, Graham, and Miller, but applied through its state constitutional lens, the Iowa Supreme Court concluded "that the sentencing of juveniles according to statu-torily required mandatory minimums does not adequately serve the legitimate penological objectives in light of the child's categorically diminished culpability." Id. at 398.

         Similarly, the Washington Supreme Court looked to Roper, Graham, and Miller and concluded that

"[t]he Supreme Court's recent decisions explicitly hold that the Eighth Amendment to the United States Constitution compels us to recognize that children are different.
[297 Or.App. 136] "The Supreme Court has already applied that holding about the differences between children and adults in several specific contexts: the death penalty, Roper, 543 U.S. at 574, 125 S.Ct. 1183; life without parole sentences for non-homicide offenses, Graham, 560 U.S. at 79, 130 S.Ct. 2011; mandatory life without parole sentences for any offense, Miller, 132 S.Ct. at 2469; and confessions, J.D.B. v. North Carolina, 564 U.S. 261, 277, 131 S.Ct. 2394, 180 L.Ed.2d 310 (2011).
"Critically, the Supreme Court has also explained how the courts must address those differences in order to comply with the Eighth Amendment: with discretion to consider the mitigating qualities of youth."

State v. Houston-Sconiers, 188 Wash.2d 1, 18-19, 391 P.3d 409, 418 (2017).

         Ultimately, like Iowa, the Washington Supreme Court concluded:

"In accordance with Miller, we hold that sentencing courts must have complete discretion to consider mitigating circumstances associated with the youth of any juvenile defendant, even in the adult criminal justice system, regardless of whether the juvenile is there following a decline hearing or not. To the extent our state statutes have been interpreted to bar such discretion with regard to juveniles, they are overruled. Trial courts must consider mitigating qualities of youth at sentencing and must have discretion to impose any sentence below the otherwise applicable SRA range and/or sentence enhancements."

Id. at 21, 391 P.3d at 420 (footnotes omitted).

         In that vein, we conclude that the threshold question in considering whether the principles of Roper, Graham, and Miller apply at juvenile sentencing is this: Does the case involve the imposition of the state's most severe penalties against a juvenile defendant? When the sentence sought to be imposed on a juvenile is among the state's most severe, then procedurally, the imposition of that sentence cannot proceed as if the juvenile were not a child, even if the sentence otherwise might be substantively permissible. And, when the sentence is among the most severe, the secondary [297 Or.App. 137] question becomes whether the statutory sentencing scheme for a juvenile offender fulfills the constitutional duty to fully consider youth in sentencing. In this case, answering both those questions requires us to consider the statutes that govern the imposition of an aggravated murder sentence on a juvenile in Oregon.

         B. Oregon's Aggravated Murder Statutory Scheme for Juveniles

         As the Oregon Supreme Court previously explained, "[t]he murder statutes distinguish between 'ordinary' murder and murder that is accompanied by specified aggravating circumstances." State v. Ventris, 337 Or. 283, 292, 96 P.3d 815 (2004) (referencing ORS 163.115 (murder) and ORS 163.095 (aggravated murder)). Aggravated murder is defined in ORS 163.095 as murder "which is committed under, or accompanied by, any of the following circumstances. The statute goes on to list 17 separate aggravating circumstances." State v. Wille, 317 Or. 487, 493, 858 P.2d 128 (1993) (internal quotation marks omitted). Those 17 aggravating circumstances cover a very broad array of conduct.

         Some aggravators are based on the status of the defendant. For example, ORS 163.095(1)(c) aggravates a homicide if "[t]he defendant committed murder after having been convicted previously in any jurisdiction of any homicide." Likewise, murder becomes aggravated murder if defendant was in a "correctional facility or was otherwise in custody when the murder occurred." ORS 163.095(2)(b). Other aggravators consider the method of the homicide. See, e.g., ORS 163.095(2)(c) ("murder by means of an explosive"); ORS 163.095(1)(b) (solicitation). Still others aggravate a homicide based upon the motive. See, e.g., ORS 163.095(2)(e) ("murder was committed in an effort to conceal the commission of a crime, or to conceal the identity of the perpetrator of a crime"). Some aggravators require the defendant to have personally committed the murder (ORS 163.095 (2)(d)), but many do not. Finally, a murder may become aggravated murder based on some characteristic of the victim. ORS 163.095(2)(a)(A) - (H), for example, lists a variety of victim occupations including police officer, judicial officer, and "regulatory specialist." Also in this category is age. A [297 Or.App. 138] murder becomes aggravated murder if the victim is under 14 years of age. ORS 163.095(1)(f).

         The only statutorily permissible sentences for a conviction of aggravated murder are set forth in ORS 163.105: death, life without parole, or life imprisonment. That third potential sentence, life imprisonment, differs from "life imprisonment" imposed for a conviction of "ordinary" murder. See ORS 163.115. Specifically, a life sentence imposed under ORS 163.105 is eligible for conversion to life with the possibility of parole after 30 years. ORS 163.105(1)(c). In contrast, a life sentence for "ordinary" murder is eligible for conversion to life with the possibility of parole after 25 years. ORS 163.115(5)(b). Thus, the three sentences permissible under ORS 163.105 are unique to aggravated murder and no other crime in Oregon can permit their imposition.

         In addition to the substantive crime and associated sentence, two other statutes are implicated when a juvenile, as opposed to an adult, is charged with aggravated murder: waiver to adult court, ORS 419C.349, and the "second look" hearing, ORS 420A.203.

         In 1959, the Oregon legislature adopted a Juvenile Code. See Brady v. Gladden, 232 Or. 165, 166, 374 P.2d 452 (1962). The Juvenile Code vested "exclusive original jurisdiction" in the juvenile court over "a person who is under 18 years of age" and "[w]ho has committed an act which if done by an adult would constitute a violation of a law or ordinance of the United States or a state." Id. at 166 (relying on former ORS 419.476 (1959), repealed by Or Laws 1993, ch 33, § 373 (internal quotation marks omitted)).

         Although the 1959 Juvenile Code vested exclusive and original jurisdiction over any person under 18 years of age in juvenile court, there was a provision for waiver into adult criminal court. Former ORS 419.533(1) (1959), repealed by Or Laws 1993, ch 33, § 373, stated:

         "A child may be remanded to a circuit, district, justice or municipal court of competent jurisdiction for disposition as an adult if:

"(a) The child is at the time of the remand 16 years of age or older; and
[297 Or.App. 139]"(b) The child committed or is alleged to have committed a criminal offense or a violation of a municipal ordinance; and
"(c) The juvenile court determines that retaining jurisdiction will not serve the best interests of the child and the public."

State v. Little, 241 Or. 557, 560 n 1, 407 P.2d 627 (1965) (citing former ORS 419.533(1) (1959)).

         A few years after Oregon enacted the Juvenile Code, the United States Supreme Court gave juvenile waiver hearings constitutional significance in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). In Kent, the Court held that, when a state creates a juvenile jurisdiction court, to comply with the Due Process Clause of the Fourteenth Amendment to the United States Constitution, the waiver procedure cannot be arbitrary:

"[T]he Juvenile Court should have considerable latitude within which to determine whether it should retain jurisdiction over a child or-subject to the statutory delimitation- should waive jurisdiction. But this latitude is not complete. At the outset, it assumes procedural regularity sufficient in the particular circumstances to satisfy the basic requirements of due process and fairness, as well as compliance with the statutory requirement of a full investigation.
"*** [Because the] decision as to waiver of jurisdiction and transfer of the matter to the District Court was potentially as important to petitioner as the difference between five years' confinement and a death sentence, we conclude that, as a condition to a valid waiver order, petitioner was entitled to a hearing, including access by his counsel to the social records and probation or similar reports which presumably are considered by the court, and to a statement of reasons for the Juvenile Court's decision."

Kent, 383 U.S. at 552-57 (internal quotation marks and footnote omitted).

         The Court noted that there should be articulated criteria for the juvenile court to consider in a waiver hearing, [297 Or.App. 140] citing with approval the 1959 District of Columbia Juvenile Court waiver criteria:

"1. The seriousness of the alleged offense to the community and whether the protection of the community requires waiver.
"2. Whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner.
"3. Whether the alleged offense was against persons or property ***.
"4. The prosecutive merit of the complaint * * *. "5. The desirability of trial and disposition of the entire offense in one court * * *.
"6. The sophistication and maturity of the juvenile as determined by consideration of his home, environmental situation, emotional attitude and pattern of living.
"7. The record and previous history of the juvenile ***.
"8. The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile *** by the use of procedures, services and facilities ...

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