Case v. Cain ( 2021 )

457
Submitted on remand from the Oregon Supreme Court July 12, affirmed
September 9, 2021
DAVID KIRKPATRICK CASE,
Petitioner-Appellant,
v.
Brad CAIN,
Superintendent,
Snake River Correctional Institution,
Defendant-Respondent.
Malheur County Circuit Court
16CV20844; A164729
497 P3d 816
On remand from the Oregon Supreme Court, Case v.
Cain, 368 Or 206, 487 P3d 400 (2021).
Erin K. Landis, Judge.
Lindsey Burrows 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 briefs for respondent.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
PER CURIAM
Affirmed.
458 Case v. Cain
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 P3d 28 (2021) (Link II). Case v.
Cain, 368 Or 206, 487 P3d 400 (2021). Petitioner was a juve-
nile at the time of his offenses and is serving concurrent
sentences under ORS 163.105(1)(c) (1999), amended by Or
Laws 1999, ch 59, § 31,1 on two convictions for aggravated
murder. In our original opinion, we held that petitioner was
entitled to post-conviction relief from his sentences under
ORS 163.105(1)(c), ruling that those sentences violated
petitioner’s incorporated Eighth Amendment to the United
States Constitution rights under Miller v. Alabama, 567 US
460, 132 S Ct 2455, 183 L Ed 2d 407 (2012), as interpreted
by our court in State v. Link, 297 Or App 126, 441 P3d 664
(2019) (Link I). Case v. Cain, 306 Or App 21, 24-25, 474
P3d 415 (2020), vac’d and rem’d, 368 Or 206, 487 P3d 400
(2021). Specifically, we concluded that, under Link I, peti-
tioner’s sentences violated the Eighth Amendment because
the sentencing scheme did not, in our view, allow for con-
stitutionally adequate consideration of petitioner’s youth.
Id. In Link II, however, the Supreme Court disagreed with
our analysis in Link I and held that sentences under ORS
163.105(1)(c), as applied to juvenile offenders, do not vio-
late the Eighth Amendment under Miller. Link II, 367 Or
at 661-65. In view of Link II, our conclusion that petitioner’s
sentences are unconstitutional for failing to allow for con-
stitutionally adequate consideration of petitioner’s youth
can no longer stand. See, e.g., Carnahan v. Cain, 313 Or App
718, 492 P3d 733 (2021) (reaching similar conclusion under
Link II regarding sentence imposed on juvenile under ORS
163.115).
In his brief to us, petitioner raised one additional
argument as to why his sentences violated the Eighth
Amendment that we did not need to reach the first time
this case was before us. He also contends that it violates the
Eighth Amendment to sentence a juvenile to a mandatory
minimum period of confinement (in this case, 30 years). As
1
All references in this opinion to ORS 163.105 are to the 1999 version of the
statute.
Cite as 314 Or App 457 (2021) 459
petitioner acknowledges, that argument is foreclosed by our
decision in State v. Conrad, 280 Or App 325, 336-37, 381 P3d
880 (2016), rev den, 360 Or 851 (2017), and we reject it for
that reason.
Affirmed.