State v. Davilla

302 Or.App. 742

462 P.3d 748

STATE of Oregon, Plaintiff-Respondent,

v.Todd Daniel DAVILLA, Defendant-Appellant.

A165390

Court of Appeals of Oregon.

Argued and submitted September 10, 2018.

March 11, 2020

Kendra M. Matthews, Portland, argued the cause for appellant. Also on the briefs was Boise Matthews LLP.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. Also on the brief were Frederick M. Boss, Deputy Attorney General, and Benjamin Gutman, Solicitor General.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

TOOKEY, J.

This case has a long history. Defendant appeals a Fifth Amended Judgment of conviction for one count each of murder, ORS 163.115, first-degree burglary, ORS 164.225, and attempted first-degree rape, ORS 163.375 ; ORS 161.405, that was entered following his most recent resentencing in 2017. We write only to address defendant’s fifth assignment of error because defendant is entitled to resentencing based on that error. In his fifth assignment of error, defendant, who was 16-years-old when he murdered the victim, contends that the 600-month term of incarceration imposed by the trial court violates the Eighth Amendment to the United States Constitution based on the principles articulated by the United States Supreme Court in Montgomery v. Louisiana , ––– U.S. ––––, 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016) ; 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).¹

Because the sentencing court’s decision does not reflect that it took "into account how children are different, and how those differences counsel against irrevocably sentencing [defendant] to a [de facto ] lifetime in prison," we conclude that defendant’s sentence violates the Eighth Amendment. Miller , 567 U.S. at 480, 132 S.Ct. 2455 ; see White v. Premo , 365 Or. 1, 15, 443 P.3d 597 (2019) ("We know of no state high court that has held that a sentence in excess of 50 years for a single homicide provides a juvenile with a meaningful opportunity for release."). Accordingly, we reverse and remand for resentencing.

The pertinent facts are mostly procedural and undisputed. "Defendant was 16 years old on August 13, 1991, when he attempted to rape the victim and then murdered her, nearly decapitating her."

State v. Davilla , 121 Or. App. 583, 585, 855 P.2d 1160, adh’d to on recons. , 124 Or. App. 87, 860 P.2d 894 (1993), rev. den. , 318 Or. 351, 870 P.2d 220 (1994). "He was originally charged by petitions filed in juvenile court with committing offenses which, if committed by an adult, would constitute the crimes of aggravated murder (four counts), murder (one count), burglary in the first degree (five counts) and attempted rape in the first degree (two counts)." Id . Given defendant’s age, the state moved to remand the case from juvenile to circuit court and defendant "agreed not to oppose remand and to plead guilty to murder, ORS 163.115 (1989), first-degree burglary, ORS 164.225 (1989), and first-degree attempted rape, ORS 161.405 (1989), ORS 163.375 (1989), in exchange for the state’s agreement not to prosecute him for aggravated murder." State v. Davilla , 280 Or. App. 43, 46, 380 P.3d 1003 (2016).

Over the past 25 years, defendant has challenged various aspects of the sentences that he has received for his murder conviction on appeal, resulting in multiple resentencing hearings. We only discuss the facts that relate to defendant’s most recent resentencing proceeding, because the other proceedings are not germane to the issue that we resolve in this appeal. See id. at 46-51, 380 P.3d 1003 (summarizing the procedural history of this case).

In this resentencing hearing, the parties agreed that the presumptive guidelines sentence for defendant’s murder conviction is 120-121 months’ imprisonment.² In the state’s sentencing memorandum, it argued that the sentencing court could impose a 600-month upward departure sentence under the sentencing guidelines "based on the ‘dangerous weapon’ aggravating factor," because the use of the "weapon made the circumstances of this case so exceptional that the presumptive sentence would not accomplish the purposes of the guidelines."

In response, defendant argued that "the state ha[d] not demonstrated a substantial and compelling basis to depart based on defendant’s use of a dangerous weapon in an intentional murder," because "defendant’s use of a dangerous weapon to commit an intentional murder is not exceptional." Defendant also contended, among other points, that a 600-month sentence would violate the Eighth Amendment, and that the court must take into consideration the expert testimony that he presented about the mitigating qualities of his youth at the time that he committed the murder and the evidence that he presented demonstrating his good conduct and efforts at rehabilitation while incarcerated under the reasoning articulated by the Supreme Court in Miller , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407. Defendant, pointing to Montgomery , ––– U.S. ––––, 136 S. Ct. at 734-36, also noted that the Court has reiterated "that children who commit even heinous crimes are capable of change," and, thus, juveniles whose crimes were a product of their youth must be given a meaningful opportunity for release.

The sentencing court imposed the 600-month sentence, finding that "the state has proven [beyond a reasonable doubt that] the use of a weapon provides a substantial and compelling reason to depart," and it made extensive findings concerning the horrific details surrounding defendant’s use of the knife during the murder to explain why that factor justified an upward departure. The court also rejected defendant’s argument that a 600-month sentence is an unconstitutional punishment.³

On appeal, in his opening brief, defendant cited the principles of transient immaturity and rehabilitation that the Supreme Court stressed in Roper , Graham , Miller , and Montgomery to support his argument that the 600-month sentence should be reversed because "defendant is precisely the type of juvenile offender envisioned by these cases." Defendant then filed a supplemental memorandum of additional authorities, observing that the Oregon appellate courts have discussed Miller extensively and applied those principles in White , 365 Or. 1, 443 P.3d 597, and State v. Link , 297 Or. App. 126, 441 P.3d 664, rev. allowed , 365 Or. 556, 451 P.3d 1000 (2019). Defendant contends that, pursuant to the principles and reasoning discussed in those cases, we "should conclude that, before imposing such an extraordinarily long term, the trial court was required to give due consideration to the science supporting the conclusions underpinning Miller and, demonstrably, engage in a Miller analysis."⁴

We only briefly point out some of the case law underlying Miller here, because recent Oregon appellate court decisions have discussed the genesis of Miller at length. See White , 365 Or. at 7-10, 443 P.3d 597 (discussing "the genesis of Miller " and "the state of the law before Miller was decided in 2012" (citing Roper , 543 U.S. at 569-74, 125 S.Ct. 1183 (observing that differences between juvenile offenders and adults render juvenile offenders less blameworthy due to "[t]he susceptibility of juveniles to immature and irresponsible behavior," and concluding that the Eighth Amendment prohibits the imposition of the death penalty on juvenile offenders because the penological justifications for the imposition of the death penalty apply with less force to juvenile offenders); Graham , 560 U.S. at 71-79, 130 S.Ct. 2011 (discussing the penological justifications for sentencing juvenile nonhomicide offenders to life without parole, and concluding that the Eighth Amendment categorically prohibits such a sentence because it deprives those juvenile offenders of the "chance to demonstrate maturity and reform")); see also Link , 297 Or. App. at 132-33, 441 P.3d 664 (discussing the Supreme Court’s observations in Roper and Graham about the differences between juveniles and adults).

In Miller , the Court concluded that a juvenile homicide offender could be sentenced to life without parole, but the sentencer had "to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." 567 U.S. at 479-80, 132 S.Ct. 2455. The Court explained that, "given all we have said in Roper , Graham , and this decision about children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon," because such a sentence should be reserved only for "the rare juvenile offender whose crime reflects irreparable corruption." Id . (internal quotation marks omitted); see also Montgomery , ––– U.S. ––––, 136 S. Ct. at 734 (explaining that Miller "did more than require a sentencer to consider a juvenile offender’s youth before imposing life without parole; it established that the penological justifications for life without parole collapse in light of ‘the distinctive attributes of youth’ " (quoting Miller , 567 U.S. at 472, 132 S.Ct. 2455 )).

In White , when the petitioner and his brother were 15-years-old they beat a vulnerable elderly couple in their 80’s to death by striking them with their fists and weapons. 365 Or. at 18-19, 443 P.3d 597. The petitioner petitioned for post-conviction relief, arguing that the 800-month determinate sentence that the court had imposed for the murder of one of the victims is a de facto life sentence that "is subject to Miller ’s protections." Id . at 3, 443 P.3d 597. The post-conviction court dismissed the petition on procedural grounds, and we affirmed. Id . at 4, 443 P.3d 597. The Oregon Supreme Court first concluded that petitioner’s petition...