Opinion
A165761
11-17-2021
Brian Joseph HARDEGGER, Petitioner-Appellant, v. Brigitte AMSBERRY, Superintendent, Eastern Oregon Correctional Institution, Defendant-Respondent.
Jason Weber 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.
Jason Weber 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 ). Hardegger v. Amsberry , 368 Or. 206, 487 P.3d 400 (2021). Petitioner was a juvenile when he and his father killed his mother. He was tried as an adult under ORS 137.707 (2001), amended by Or Laws 2019, ch. 634, § 5. Following a stipulated facts trial, petitioner was found guilty of felony murder and sentenced to life in prison, ORS 163.115(5)(a) (2001), with the chance of parole after 25 years, ORS 163.115(5)(b), (c) (2001).
The statute has since been amended. See Or Laws 2007, ch. 717, § 2; Or Laws 2009, ch. 660, § 7; Or Laws 2009, ch. 785, § 1; Or Laws 2011, ch. 291, § 1; Or Laws 2015, ch. 820, § 46; Or Laws 2019, ch. 634, § 28. All references in this opinion to ORS 163.115 are to the 2001 version of the statute.
In our original opinion, we concluded that the trial court erred in granting the superintendent's motion for summary judgment, and we remanded the case for resentencing, holding that, in view of 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 ), petitioner's sentence was impermissible under the Eighth Amendment to the United States Constitution. Hardegger v. Amsberry , 305 Or. App. 726, 745, 473 P.3d 576 (2020), vac'd and rem'd , 368 Or. 206, 487 P.3d 400 (2021). In Link II , the Supreme Court disagreed with our decision in Link I , holding that the statutory scheme under which that defendant was sentenced for murder committed when he was a juvenile—life imprisonment with the chance of parole after 30 years—was not "the functional equivalent of life without parole" and, therefore, did not violate the Eighth Amendment. 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 decision in Link II . Hardegger , 368 Or. 206, 487 P.3d 400. We now conclude, in view of Link II , that petitioner's sentence to life in prison with the chance of parole after 25 years is not a true-life sentence and, therefore, does not violate the Eighth Amendment. See, e.g. , 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 ).
In our original opinion, we also accepted the superintendent's concession that the post-conviction court erred in ruling that petitioner's claim was statutorily time barred. Petitioner's post-conviction claim is not time barred, but, as we explain, we now reject his claim on the merits.
Affirmed.