and submitted September 7, 2018
Deschutes County Circuit Court 01FE0371AB; Alta Jean Brady,
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
DeVore, Presiding Judge, and Tookey, Judge, and James, Judge.
on Count 4 vacated; remanded for resentencing, otherwise
affirmed. Tookey, J., dissenting.
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
on Count 4 vacated; remanded for resentencing, otherwise
Or.App. 128] JAMES, J.
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.
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
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
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
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
Id. at 211. The court's disposition read as
"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.
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
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
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:
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.)
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."
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.
Roper, Graham, and Miller
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
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).
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).
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.
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."
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.
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
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
[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).
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).
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's Aggravated Murder Statutory Scheme for
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
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
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.
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.
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)).
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:
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)).
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
"[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
"*** [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
Kent, 383 U.S. at 552-57 (internal quotation marks
and footnote omitted).
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
"2. Whether the alleged offense was committed in an
aggressive, violent, premeditated or willful manner.
"3. Whether the alleged offense was against persons or
"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