Kinkel v. Board of Parole

170 October 28, 2026 No. 1031 IN THE COURT OF APPEALS OF THE STATE OF OREGON KIPLAND KINKEL, Petitioner, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent. Board of Parole and Post-Prison Supervision A181419 Argued and submitted October 18, 2024. Thaddeus Betz argued the cause for appellant. Also on the briefs was Oregon Justice Resource Center. Philip Thoennes, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General. Before Shorr, Presiding Judge, Powers, Judge, and Pagán, Judge. POWERS, J. Affirmed. Cite as 354 Or App 170 (2026) 171 POWERS, J. In this judicial review proceeding, petitioner chal- lenges the decision of the Board of Parole and Post Prison Supervision that denied his request for a hearing under ORS 163.115(5) (1999).1 Petitioner asserts that the board misinterpreted the statute when it concluded that it did not have authority to hold a murder-review hearing and he also raises a number of constitutional arguments relating to the denial of the hearing. As explained below, we conclude that the board did not err. Accordingly, we affirm. The history of petitioner’s crimes and sentenc- ing have been thoroughly discussed in his previous direct appeal, State v. Kinkel, 184 Or App 277, 56 P3d 463, rev den, 335 Or 142 (2002) (Kinkel I), and multiple post-conviction proceedings, Kinkel v. Lawhead, 240 Or App 403, 246 P3d 746, rev den, 350 Or 408 (2011) (Kinkel II), Kinkel v. Persson, 363 Or 1, 417 P3d 401 (2018), cert den, 586 US 1077 (2019) (Kinkel IV), and will not be repeated here in detail. Suffice it to say that in 1998, when he was 15 years old, petitioner mur- dered his parents, then shot and killed two classmates, and wounded nearly two dozen other people in a shooting ram- page at his high school. The state charged petitioner with a total of 58 counts, including multiple counts of attempted and completed aggravated murder. Kinkel II, 240 Or App at 405 (discussing initial charges). After a mediated settlement conference, a number of charges were dismissed and petitioner pleaded guilty to four counts of murder and 25 counts of attempted murder, and pleaded no contest to one additional count of attempted murder. Id. at 407. As part of the plea agreement, peti- tioner stipulated to concurrent 25-year determinate sen- tences on the murder convictions, and the parties agreed that the trial court would establish the sentences for the attempted murder counts. Id. Following a sentencing hear- ing, the court imposed the mandatory 90-month sentence on each of the attempted murder counts in a combination 1 The statute has been amended numerous times since petitioner’s crimes. Or Laws 1999, ch 782, § 4; 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 to ORS 163.115 are to the version in effect in 1999 when petitioner was sentenced. 172 Kinkel v. Board of Parole of concurrent and consecutive portions that totaled 1,040 months of incarceration, in addition to the 25-year murder sentences. Petitioner’s total aggregate sentence was slightly less than 112 years. Kinkel I, 184 Or App at 284-85. As petitioner approached the end of his initial 25 years in prison on the murder convictions, he sent a letter to the board requesting a hearing pursuant to ORS 163.115(5) (c). Under that statute, after serving the minimum 25-year period of confinement, a person convicted of murder and sen- tenced to life imprisonment is entitled to a hearing to deter- mine if the person is likely to be rehabilitated within a rea- sonable period of time. ORS 163.115(5)(c).2 If the board finds that the person is capable of rehabilitation and the terms of confinement should be changed to life imprisonment with the possibility of parole or other release, the board shall enter an order to that effect and may set a release date. ORS 163.115(5)(d). Such a hearing is commonly referred to as a “murder-review hearing.” Hardegger v. Amsberry, 305 Or App 726, 732, 473 P3d 576 (2020), vac’d, 368 Or 206 (2021). The board denied petitioner’s request for a murder- review hearing, explaining that it lacked authority to hold such a hearing. In the board’s view, because petitioner was not serving a life sentence, there was no life sentence for the board to convert to the possibility of parole or other release. The board further reasoned that by the time he had com- pleted the minimum 25-years of confinement, petitioner would have completely served the period of incarceration for the murder convictions and would begin serving the 2 ORS 163.115(5), which is set out in more detail later, provided, in part: “(a) A person convicted of murder, who was at least 15 years of age at the time of committing the murder, shall be punished by imprisonment for life. “(b) When a defendant is convicted of murder under this section, the court shall order that the defendant shall be confined for a minimum of 25 years without possibility of parole, release to post-prison supervision, release on work release or any form of temporary leave or employment at a forest or work camp. “(c) At any time after completion of a minimum period of confinement pursuant to paragraph (b) of this subsection, the State Board of Parole and Post-Prison Supervision, upon the petition of a prisoner so confined, shall hold a hearing to determine if the prisoner is likely to be rehabilitated within a reasonable period of time. The sole issue shall be whether or not the pris- oner is likely to be rehabilitated within a reasonable period of time.” Cite as 354 Or App 170 (2026) 173 remaining consecutive sentences for attempted murder, over which the board had no release authority. Petitioner sought administrative review, reasserting his argument that he was entitled to a hearing under ORS 163.115(5), and the board denied relief. In its administrative review response, the board concluded that there was no final board action to review and reasserted that it had no authority to hold a murder-review hearing. Petitioner now seeks judicial review. In his petition for judicial review, petitioner asserts that the board erred in its interpretation of ORS 163.115(5). Petitioner maintains that he is entitled to a murder-review hearing, having completed the minimum period of 25 years of confinement for a murder conviction. He further asserts that the board was incorrect when it concluded that it had no authority to convert the terms of his confinement once he had completed that 25-year minimum period. Finally, peti- tioner argues that the denial of a murder-review hearing offends a number of federal and state constitutional provi- sions. The board maintains that it correctly concluded that under ORS 163.115(5) it had no authority over petitioner’s consecutive sentences on the attempted murder counts. With respect to petitioner’s constitutional arguments, the board asserts that he failed to exhaust the arguments below, that petitioner cannot collaterally attack his sentence through this proceeding, and that a number of the arguments have already been rejected in various other appeals. We review the board’s legal conclusions to deter- mine whether the board has “erroneously interpreted a provision of law.” ORS 183.482(8)(a); Engweiler v. Board of Parole, 343 Or App 343, 352, 579 P3d 228 (2025), rev den, 375 Or 109 (2026). In construing a statute, we examine the text of the statute in context and consider any useful legis- lative history of which we are aware. State v. Gaines, 346 Or 160, 169-72, 206 P3d 1042 (2009). We begin with petitioner’s statutory arguments, starting with the text of ORS 163.115. Five of the six sec- tions of the statute set forth the elements of the crime of murder, charging requirements, affirmative defenses, and definitions. ORS 163.115(1) - (4), (6). Given the arguments at issue, we focus on subsection (5), which provided, in part: 174 Kinkel v. Board of Parole “(a) A person convicted of murder, who was at least 15 years of age at the time of committing the murder, shall be punished by imprisonment for life. “(b) When a defendant is convicted of murder under this section, the court shall order that the defendant shall be confined for a minimum of 25 years without possibil- ity of parole, release to post-prison supervision, release on work release or any form of temporary leave or employment at a forest or work camp. “(c) At any time after completion of a minimum period of confinement pursuant to paragraph (b) of this subsection, the State Board of Parole and Post-Prison Supervision, upon the petition of a prisoner so confined, shall hold a hearing to determine if the prisoner is likely to be reha- bilitated within a reasonable period of time. The sole issue shall be whether or not the prisoner is likely to be rehabili- tated within a reasonable period of time. * * * “* * * * * “(d) If, upon hearing all of the evidence, the board, upon a unanimous vote of all of its members, finds that the prisoner is capable of rehabilitation and that the terms of the prisoner’s confinement should be changed to life imprisonment with the possibility of parole, release to post- prison supervision or work release, it shall enter an order to that effect and the order shall convert the terms of the prisoner’s confinement to life imprisonment with the possi- bility of parole, release to post-prison supervision or work release and may set a release date. Otherwise, the board shall deny the relief sought in the petition.” ORS 163.115(5). Focusing primarily on paragraph (c), petitioner argues that all of the prerequisites for holding a murder- review hearing were met: he was convicted of murder, he completed the minimum period of confinement of 25 years, and he submitted a petition for a hearing. He maintains that the board’s interpretation of the statute as only applying in situations where a person is serving a life sentence is mis- placed, as no such requirement appears in the text of para- graph (c). In advancing his argument, petitioner relies on context of similar statutes, case law regarding the history of the various statutory sentencing schemes for murder, and Cite as 354 Or App 170 (2026) 175 legislative history in support of his argument that a life sen- tence is not a prerequisite for the board’s authority to hold a murder-review hearing. The board maintains its position that the murder-review hearing is a function of an individ- ual first being sentenced to life imprisonment pursuant to paragraph (a), and it also points to associated context and legislative history in support of that interpretation. Because petitioner did not receive a life sentence, the board argues, it had no authority to hold a murder-review hearing. We agree with the board’s argument. As with all statutory interpretation, text and con- text remain the primary consideration in statutory analysis. See Gaines, 346 Or at 171. At the time of petitioner’s crimes, the sentence for murder was imprisonment for life, with a mandatory minimum term of incarceration of 25 years. ORS 163.115(5)(a); see also State v. Ambill, 282 Or App 821, 825- 28, 385 P3d 1110 (2016), rev den, 361 Or 439, and rev den, 361 Or 524 (2017) (discussing the history of ORS 163.115 and sentencing for murder convictions). In the context of such a life sentence, an individual must serve a minimum period of confinement before the individual may be consid- ered for any form of release. Id. at 828; ORS 163.115(5)(b). Upon holding a murder-review hearing and finding that the petitioner was likely to be rehabilitated within a reasonable period, the only action the board was authorized to under- take was to “convert the terms of the prisoner’s confinement to life imprisonment with the possibility of parole, release to post-prison supervision or work release” and then it “may set a release date.” ORS 163.115(5)(d). The murder-review hearing and subsequent con- version of the terms of confinement are premised upon the petitioner serving an indeterminate life sentence. Without a life sentence, neither the consideration of the likelihood of rehabilitation nor the conversion of the terms of confine- ment to life imprisonment with the possibility of some form of release has any meaning. That is, an individual serving a determinate sentence of a term of years need not show any rehabilitation upon the completion of the incarcerative portion of the sentence to be released—the determinate sen- tence is the time the offender will actually serve, subject 176 Kinkel v. Board of Parole only to reductions authorized by law. See, e.g., State ex rel Engweiler v. Cook, 340 Or 373, 380-81, 381 n 7, 133 P3d 904 (2006) (discussing the difference between determinate and indeterminate sentencing frameworks). Nor may the board convert a sentence of a term of years into a life sentence with the possibility of release. See Gaynor v. Board of Parole, 165 Or App 609, 612-15, 996 P2d 1020 (2000) (discussing the limitations of the board’s authority under the determinate sentencing structure and noting that it is the purview of the sentencing court to establish a sentence). It follows that the board may only convert a sentence to life with the possibility of some form of release if the individual is already serving a life sentence. Petitioner’s primary argument that the board has authority to hold a murder-review hearing in the absence of a life sentence is rooted in the statutory framework’s refer- ence to post-prison supervision (PPS). Petitioner clarified at oral argument that he is not requesting that his sentence be changed to a life sentence; rather, he asserts that the terms of his confinement—the 25-year murder sentence plus the 26 partially consecutive attempted murder sentences— could be converted to release to post-prison supervision. As we have discussed in detail previously, parole generally was a function of the pre-1989 indeterminate sentencing process under which the sentencing court would impose a maxi- mum term of incarceration and the board would determine the actual length of the incarceration before the individual would serve the remainder of the term on parole before dis- charge. See Black v. Board of Parole, 341 Or App 524, 539- 40, 575 P3d 148 (2025), rev allowed, 375 Or 67 (2026). In 1989, that system was largely replaced with the sentenc- ing guidelines system, where a determinate sentence is established by the trial court, including a term of PPS to be served upon release, and the board no longer had authority to set the term of incarceration and release to parole. Id. at 540. Based on that general difference—that parole follows an indeterminate sentence and PPS follows a determinate sentence—petitioner argues that the inclusion of the refer- ence in ORS 163.115(5)(b) to release to PPS indicates that the murder-review hearing must be available to those serv- ing determinate sentences, without an indeterminate life Cite as 354 Or App 170 (2026) 177 sentence first being imposed. Otherwise, petitioner argues, there would be no mechanism for release to PPS, and its inclusion in the statute would be meaningless. Petitioner’s position is rooted in his interpretation of ORS 163.115(5)(d) as including three distinct possibilities for what the board may do following a demonstration of capabil- ity of rehabilitation: convert the terms of confinement to (1) life imprisonment with the possibility of parole; (2) release to PPS; or (3) work release. Effectively, petitioner argues that the life imprisonment clause connects only to the pos- sibility of parole. The difficulty with petitioner’s argument, however, is that his reading is not consistent with the rest of the statutory context. Petitioner’s argument on this point focuses on the lengthy sentence in ORS 163.115(5)(d), which provided: “If, upon hearing all of the evidence, the board, upon a unanimous vote of all of its members, finds that the pris- oner is capable of rehabilitation and that the terms of the prisoner’s confinement should be changed to life imprison- ment with the possibility of parole, release to post-prison supervision or work release, it shall enter an order to that effect and the order shall convert the terms of the prison- er’s confinement to life imprisonment with the possibility of parole, release to post-prison supervision or work release and may set a release date.” A much more natural reading of that sentence is that the possible options for conversion are life imprisonment with the possibility of (1) parole; (2) release to post-prison super- vision; or (3) work release. We interpret the sentence struc- ture in paragraph (5)(d) to be consistent with paragraph (5) (b), which provided that an individual “shall be confined for a minimum of 25 years without possibility of parole, release to post-prison supervision, release on work release or any form of temporary leave or employment at a forest or work camp.” ORS 163.115(5)(b). In our view, it is more reasonable to interpret the list of parole, release to PPS, or work release as having a consistent meaning between the two paragraphs within the same subsection of the statute, viz., to describe the various forms of release that are unavailable for the first 178 Kinkel v. Board of Parole 25 years of a life sentence and may become available under the specified circumstances. Petitioner’s proposed construction becomes even more untenable in light of the action that the board may take, which is limited to a conversion of the “terms of con- finement.” The phrase “terms of confinement” includes “any conditions applicable to a period of confinement, includ- ing a condition stating that parole or any other form of release was prohibited for a mandatory minimum period[.]” Severy/Wilson v. Board of Parole, 349 Or 461, 477, 245 P3d 119 (2010). A person released to PPS is no longer confined. Therefore, as we understand petitioner’s reading of the stat- ute, it would allow the board to “convert the terms of the prisoner’s confinement [which was a determinate sentence] to * * * release to post-prison supervision.” That argument is unpersuasive given the rest of the statutory framework. Thus, we conclude that it is much more reasonable to read the relevant sentence as creating the option for the board to convert the terms of confinement from life imprisonment with no possibility of any kind of release to life imprison- ment with the possibility of parole, life imprisonment with the possibility of release to PPS, or life imprisonment with the possibility of work release. 3 Accordingly, we reject peti- tioner’s argument that the reference to PPS in the statute necessarily means that the hearing must be available even to those individuals who are not serving a life sentence. Reading the subsection as a whole, we conclude that the availability of the murder-review hearing to consider a person’s capacity for rehabilitation and ultimate conversion 3 We acknowledge that petitioner is correct in that release following an inde- terminate life sentence has historically been to parole, and not PPS. However, we recently concluded in Black, based on a comprehensive examination of the aggravated murder statutes, that “offenders convicted of aggravated murder for crimes committed after November 1, 1989, whose life sentences are converted to life with the possibility of release, are to be released to lifetime PPS, not parole, in the event of release.” Black, 341 Or App at 553. That decision is currently on review before the Supreme Court. 375 Or 67. We need not engage in the same comprehensive analysis here due to the limited scope of the question before us of whether the board erred in concluding that it did not have authority to hold a murder-review hearing. Suffice it to say that petitioner’s argument that PPS is categorically unavailable to those sentenced to life imprisonment after 1989 has been rejected, and even if Black was incorrectly decided, we reject petitioner’s argument that there is an eligible sentence for the board to convert. Cite as 354 Or App 170 (2026) 179 of the terms of confinement to life imprisonment with the possibility of some form of release is premised on the indi- vidual already serving a life sentence.4 It is undisputed that petitioner was not sentenced to life imprisonment on the murder convictions. Under the plea agreement, petitioner stipulated to a determinate 25-year sentence on each of the four counts of murder, to be served concurrently. Kinkel I, 184 Or App at 280. That sentence was the required minimum sentence under ORS 137.707(4)(a)(A) (1999), amended by Or Laws 1999, ch 1055, § 12; Or Laws 2007, ch 867, § 6; Or Laws 2011, ch 334, § 2; Or Laws 2019, ch 634, § 5; Or Laws 2019, ch 635, § 11 (estab- lishing mandatory minimum sentence of 300 months for murder by a 15-, 16-, or 17-year-old prosecuted as an adult in criminal court), and the judgment noted that the period was established by that statute. The judgment additionally included a lifetime post-prison supervision term for those four convictions. Therefore, there was no life imprisonment sentence for the board to convert into life with the possi- bility of release. See State v. McLain, 158 Or App 419, 425- 26, 974 P2d 727 (1999) (rejecting the state’s argument that “imprisonment for life” could mean “imprisonment for a mandatory minimum term followed by post-prison super- vision for life”). The fact that petitioner was also sentenced to additional consecutive determinate sentences on the 26 attempted murder counts—which resulted in an aggregate sentence longer than petitioner’s expected lifespan—does not mean that he received a sentence of life imprisonment for the murder convictions that the board could convert into a life sentence with the possibility of release. The board did not err in concluding that it did not have authority to hold a murder-review hearing for petitioner. Based on that con- clusion, we need not reach petitioner’s arguments regarding the board’s alternative explanation that it had no authority over petitioner’s attempted murder sentences. Finally, we turn to petitioner’s arguments that the denial of his request for a murder-review hearing resulted in a violation of his constitutional rights. The arguments 4 Both parties made arguments rooted in legislative history. However, we do not find any of that history particularly relevant and conclude that the text of the statute is clear. 180 Kinkel v. Board of Parole stem from the premise that, if he is not entitled to a murder- review hearing on the murder sentences, he is now serving nearly 87 years for nonhomicide offenses, without any possi- bility of review for release. The board asserts that petitioner failed to sufficiently preserve or exhaust the arguments he now asserts. We assume without deciding that the issues were properly raised below and reject them on the merits. Petitioner first asserts that it is a violation of the Eighth Amendment of the United States Constitution to sentence a juvenile offender to effective life in prison without the possibility of release for nonhomicide crimes.5 Petitioner acknowledges that that argument is foreclosed by Kinkel IV, 363 Or 1, and that we have no authority to overturn a deci- sion of the Supreme Court. He acknowledges that further argument will be reserved for any necessary review by the Supreme Court. We, therefore, reject that argument without further discussion. In his second constitutional argument, petitioner asserts that Article I, section 16, of the Oregon Constitution prohibits lesser-included crimes from receiving penalties that are more severe than what the legislature has provided for greater-included crimes.6 He asserts that allowing sentences for aggravated murder and murder to both be eligible for a murder-review hearing but denying that possibility for a per- son sentenced for attempted murder is constitutionally dis- proportionate. We reject the underlying premise of petition- er’s argument, viz., that he is serving a more severe sentence for a lesser-included crime. He was sentenced to 25 years of imprisonment for the murder convictions; he was sentenced to 90 months’ imprisonment for each attempted murder convic- tion, each to be served partially concurrent with the murder sentences. That is not a more severe sentence. The absence of the possibility of a review hearing on the attempted murder counts—something the board is not authorized to do—does not render the sentences more severe. Accordingly, we reject petitioner’s Article I, section 16, argument. 5 “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” US Const, Amend VIII. 6 “Excessive bail shall not be required, nor excessive fines imposed. Cruel and unusual punishments shall not be inflicted, but all penalties shall be propor- tioned to the offense.” Or Const, Art I, § 16. Cite as 354 Or App 170 (2026) 181 In his final constitutional argument, petitioner asserts that the denial of a murder-review hearing violates the equal protection clauses of the Fourteenth Amendment of the United States Constitution and Article I, section 20, of the Oregon Constitution.7 He argues that he is in the same position as any other person convicted of murder to whom the murder-review statute applies, and that depriving him of the right to a rehabilitation hearing lacks any rational relationship to a legitimate government end and deprives him of his liberty interest in the chance to change the terms of his confinement. Again, we reject the premise of peti- tioner’s argument. Petitioner is not in the same position as any other person convicted of murder: he accepted a plea deal and stipulated to concurrent determinative 25-year sentences on the murder counts, placing him in a different position than someone convicted of murder and sentenced to life in prison. The fact that he is serving an aggregate sen- tence for 30 counts of conviction that will last longer than his expected lifespan does not render his murder sentence a life sentence. Finally, as the Supreme Court noted in Kinkel IV, in concluding that petitioner’s sentences were not consti- tutionally disproportionate, “In the same way that a juvenile who commits a single homicide is subject to a greater sentence than a juvenile who commits a single nonhomicide offense, a juvenile who intentionally commits four murders and 26 attempted mur- ders is subject to a greater sentence based on both greater moral culpability and consequential harm than a juvenile who commits a single homicide.” Kinkel IV, 363 Or at 23 (internal quotation marks and brack- ets omitted). The denial of a murder-review hearing in these circumstances does not violate equal protection. Affirmed. 7 Section 1 of the Fourteenth Amendment to the United State Constitution provides, in part, “No State shall * * * deny to any person within its jurisdiction the equal protection of the laws.” Under Article I, section 20, of the Oregon Constitution, “No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.”