- Court: Oregon Court of Appeals
- Area(s) of Law: Post-Conviction Relief
- Date Filed: 06-14-2017
- Case #: A154420
- Judge(s)/Court Below: Duncan, P.J. for the Court; DeVore; & Garrett
- Full Text Opinion
Petitioner appealed 1993 convictions of aggravated murder and murder for acts that occurred when he was 15 years of age. On appeal, Petitioner argued, after raising the issue on direct appeal, that his 800-month sentence violated Article I, section 16 and the Eighth Amendment because it was vertically disproportionate to his sentence and was a de facto life sentence for a juvenile. In response, the State argued that Petitioner was relying on an unpreserved argument because the constitutional issues Petitioner raised were not preserved by neither the trial counsel or post-conviction counsel during trial. Under ORS 138.550(2) and ORS 138.550(3), when a petitioner has appealed and files a petition for post-conviction relief, the petitioner must raise all grounds that could reasonably be asserted at that time. Kinkel v. Persson, 276 Or App 427, rev allowed, 359 Or 525 (2016). The Court of Appeals held that Petitioner’s earlier unsuccessful challenges to his 800-month sentence on the grounds that it was disproportionate and cruel and unusual punishment to impose on a juvenile, prohibit that issue from being raised in a later post-conviction petition. Affirmed.