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 challenges 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 sentencing 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 murdered his parents, then shot and killed two classmates, and
wounded nearly two dozen other people in a shooting rampage 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, petitioner stipulated to concurrent 25-year determinate sentences 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 hearing, 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 sentenced to life imprisonment is entitled to a hearing to determine if the person is likely to be rehabilitated within a reasonable 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 murderreview 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 completed 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 prisoner 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, petitioner argues that the denial of a murder-review hearing
offends a number of federal and state constitutional provisions. 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 determine 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 legislative 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 sections 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 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 prisoner is likely to be rehabilitated 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 postprison 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 possibility 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 murderreview 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 misplaced, as no such requirement appears in the text of paragraph (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 sentence 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 individual 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 context 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 considered 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 undertake 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 conversion 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 confinement 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 sentence 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 reference 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 maximum 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 discharge. 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 sentencing 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 reference in ORS 163.115(5)(b) to release to PPS indicates that
the murder-review hearing must be available to those serving 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 capability 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 possibility 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 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 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 supervision; or (3) work release. We interpret the sentence structure 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 confinement.” The phrase “terms of confinement” includes “any
conditions applicable to a period of confinement, including 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 statute, 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 imprisonment 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 petitioner’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 indeterminate 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 individual 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 (establishing 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 possibility 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 supervision 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 conclusion, 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 murderreview hearing on the murder sentences, he is now serving
nearly 87 years for nonhomicide offenses, without any possibility 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 decision 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 person sentenced for attempted murder is constitutionally disproportionate. We reject the underlying premise of petitioner’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 conviction, 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 proportioned 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 petitioner’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 sentence 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 constitutionally 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 murders 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 brackets 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.”