Opinion
A167484
11-17-2021
Keith GILLETTE, Petitioner-Appellant, v. Brad CAIN, Superintendent, Snake River Correctional Institution, Defendant-Respondent.
Jedediah Peterson and O'Connor Weber LLC filed the briefs for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jeff J. Payne, Assistant Attorney General, filed the brief for respondent.
Jedediah Peterson and O'Connor Weber LLC filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jeff J. Payne, Assistant Attorney General, filed the brief for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.
PER CURIAM This post-conviction case is before us on remand from the Supreme Court for reconsideration in light of State v. Link , 367 Or. 625, 482 P.3d 28 (2021) ( Link II ). Gillette v. Cain , 368 Or. 206, 487 P.3d 846 (2021). Petitioner was a juvenile when he was charged with aggravated murder. After a waiver hearing, he was tried as an adult and found guilty by a jury. The court then sentenced him to life in prison under ORS 163.105 (1987). He was later granted post-conviction relief, retried, and again found guilty and the court sentenced him to life in prison with the possibility of parole after a fixed term of years.
The statute has since been amended. See Or Laws 1989, ch. 720, § 1; Or Laws 1991, ch. 126, § 8; Or Laws 1995, ch. 421, § 2; Or Laws 1999, ch. 59, § 31; Or Laws 1999, ch. 782, § 5; Or Laws 2007, ch. 717, § 1; Or Laws 2009, ch. 660, § 6; Or Laws 2015, ch. 820, § 45; Or Laws 2019, ch. 634, § 27.
In our original opinion, we concluded that petitioner was entitled to post-conviction relief because the waiver hearing that resulted in petitioner being tried as an adult could not "serve as an adequate substitute for individualized consideration of youth at sentencing" as required by Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), as we interpreted it in State v. Link , 297 Or.App. 126, 441 P.3d 664 (2019), rev'd , 367 Or. 625, 482 P.3d 28 (2021) ( Link I ). Gillette v. Cain , 306 Or.App. 287, 297, 474 P.3d 442 (2020), vac'd and rem'd , 368 Or. 206, 487 P.3d 846 (2021). In our view, the inadequate waiver hearing did "not prevent the risk of a constitutionally disproportionate sentence" and we, thus, reversed and remanded the case. Id. at 289, 474 P.3d 442.
In Link II , the Supreme Court reversed our opinion in Link I and held that the statutory scheme under which the juvenile offender had been sentenced for murder—providing for life imprisonment with the chance of parole after 30 years—did not impose "the functional equivalent of life without parole," did not deprive the juvenile offender in that case of a meaningful opportunity for release, and, therefore, did not violate the Eighth Amendment to the United States Constitution. Link II , 367 Or. at 667, 482 P.3d 28. The Supreme Court thereafter remanded this case to us for reconsideration in light of its Link II decision. Gillette , 368 Or. 206, 487 P.3d 846. Petitioner was sentenced to life in prison with the chance of parole after 30 years. He did not receive a true-life sentence. Under Link II, petitioner's sentence does not violate the Eighth Amendment. The fact that the sentence was constitutional renders the adequacy of the waiver hearing immaterial. See, e.g. , Hardegger v. Amsberry , 315 Or App 711, P3d –––– (2021) (reaching similar conclusion under Link II regarding sentence imposed on juvenile under ORS 163.115 (2001) ); Case v. Cain , , 314 Or.App. 457, 497 P.3d 816 (2021) (reaching similar conclusion under Link II regarding sentence imposed on juvenile under ORS 163.105 (1999) ); Carnahan v. Cain , 313 Or.App. 718, 492 P.3d 733 (2021) (reaching similar conclusion under Link II regarding sentence imposed on juvenile under ORS 163.115 ).
Affirmed.