Porter v. Board of Parole & Post-Prison Supervision
Porter v. Board of Parole & Post-Prison Supervision
Opinion of the Court
Petitioner killed a John Day police officer and later pleaded guilty to aggravated murder. ORS 163.095(2)(a)(A) (1991) (murder victim was police officer).
In the early morning hours of April 8, 1992, Officer Ward arrived at petitioner’s home on a domestic violence call. Petitioner had been drinking and had assaulted his wife. When Ward tried to intervene, petitioner attacked him. Petitioner bludgeoned Ward with his fists and a 10-pound piece of firewood. At some point, petitioner took and discarded Ward’s gun outside the house. When other officers arrived, they found petitioner with blood on his hands and clothes. Ward was incapacitated, and, despite medical efforts to save him, he died soon thereafter.
At the time that petitioner was sentenced, ORS 163.105(l)(c) (1991) required the court to impose a life sentence with a 30-year minimum period of incarceration.
In November 2012, the board held a prison-term hearing. See ORS 144.120(l)(a) (1991). The board calculated petitioner’s term of incarceration “under the matrix rules in effect at the time of his offense.” See Gordon v. Board of Parole, 343 Or 618, 622-23, 175 P3d 461 (2007) (explaining matrix system as sentencing scheme adopted by the legislature in 1977). In its BAF #3, the board set a “projected parole release date” of June 7, 2013, following a period of incarceration of254 months. In contemplation of that release date, the board required that petitioner complete a psychological evaluation and participate in an exit interview with the board. See ORS 144.223 (psychological examination of parole candidate).
On February 13, 2013, the board held the exit interview, as allowed by ORS 144.125 (1991).
“Based on the doctor’s report and diagnosis, coupled with all the information that the Board is considering, the Board concludes that the inmate does have an emotional disturbance; however, the emotional disturbance is not presently so severe as to constitute a danger to the health and safety of the community. The Board has considered this matter under the substantive standard in effect at the time of the commitment offense(s) and all other applicable rules and laws.”
On June 4, 2013, a few days before petitioner’s planned release, the board issued an order that “rescind [ed] the parole release date” and “reopen[ed]” its prior decision.
On September 30, 2013, the board conducted a new exit interview and issued an order (BAF #7), in which the board reaffirmed its decision to rescind petitioner’s release date.
Petitioner sought administrative review of the board’s decisions. On review, the board determined that it had authority under OAR 255-080-0012(2) to reopen the case for reconsideration and under OAR 255-080-0012(3)(c) to schedule a reopened hearing.
Petitioner now seeks judicial review, contending, generally, that he was entitled to a hearing before the board rescinded his release date, or, in absence of that hearing, that he was entitled to be released under the earlier order. Making three arguments, he asks that the board’s orders be reversed and remanded with instructions to reinstate the order affirming his release date. First, he contends that, by reopening the process and rescinding his release date, the board violated OAR 225-080-0012 and OAR 255-060-0006(1). Second, he contends that the board’s action violated ORS 144.125 (1991) because the board did not postpone his release date for a permissible reason under that statute. Third, he contends that the board violated his constitutional
We begin by describing the statutory scheme applicable to this case. At ORS 144.245(1) (1991), Oregon statute requires that, “when the parole board ‘has set a date on which a prisoner is to be released upon parole, the prisoner shall be released on that date unless the prisoner on that date remains subject to an unexpired minimum term.’” Engweiler v. Persson / Dept. of Corrections, 354 Or 549, 563, 316 P3d 264 (2013) (quoting ORS 144.245(1)). Release is not guaranteed to an inmate under that statutory provision, because, under ORS 144.125 (1991), “[p]rior to the scheduled release of any prisoner on parole * * * the board may * * * on its own initiative interview the prisoner to review the prisoner’s parole plan and psychiatric or psychological report, if any, and the record of the prisoner’s conduct during confinement.” That review process “exists to ensure that offenders are not released to parole unless and until the board is satisfied that their release is consistent with community safety.” Engweiler, 354 Or at 567.
The board’s review process, however, is bound by statutory limitations. The Supreme Court has explained:
“Once a [release] date is set, it can be postponed only for three statutorily prescribed reasons. First, under ORS 144.125(2) (1985), the board must postpone a prisoner’s release date if it finds that the prisoner had engaged in serious misconduct during confinement. The board also is permitted, but not required, to postpone a release date if the prisoner received a psychiatric or psychological diagnosis of a severe emotional disturbance that would make him a danger to the community, ORS 144.125(3) (1985), or if it deems the prisoner’s release plan to be inadequate, ORS 144.125(4) (1985).”
Janowski/Fleming, 349 Or at 457 (emphasis added); see also Stogsdill v. Board of Parole, 342 Or 332, 336, 154 P3d 91 (2007) (petitioner “entitled to be released unless the board is persuaded that he has a present severe emotional disturbance that constitutes a danger to the health or safety of the community”). Therefore, “ [i] n the absence of one of those
In this case, the board had set a release date for June 7, 2013. Just before, the board summarily “rescinded” and, as a practical consequence, postponed that release date without prior notice or hearing.
The state relies on our decision in Murphy v. Board of Parole, 140 Or App 642, 643, 915 P2d 489, modified on recons, 143 Or App 605, 925 P2d 98, rev den, 324 Or 464 (1996), to argue that we should nevertheless affirm, because petitioner was later given the hearing to determine whether he had a psychological diagnosis of a present severe emotional disturbance that would make him a danger to the community.
“ [A] fter petitioner had arrived in the corrections facility, the Board held a hearing to set his initial parole release date. Applying the matrix range, the Board set May 29, 1997, as petitioner’s initial release date. Under ORS 144.245(1), the Board was required to release petitioner on parole on that date unless the Board identified a valid reason for postponing his release. In 1997, the Board issued an order identifying one of the statutory reasons for postponing petitioner’s parole release date, namely, that he suffered from ⅛ present severe emotional disturbance [sic] that constitutes a danger to the health or the safety of the community.’
*245 “In his habeas corpus petition, petitioner alleged that the reason that the Board gave for postponing his release date was not valid. *** [UJnder ORS 144.245, the Board was required to release petitioner on parole on the scheduled release date unless it had a valid reason for postponing that release date. Respondent does not contend that petitioner was subject to an unexpired minimum term. Therefore, if petitioner were to prevail on his claim that the Board’s reason for postponing his release date under ORS 144.125(3) was not valid, then the Board should have released him on parole on May 29, 1997, and his continued imprisonment is unlawful. The Board is not entitled to rely on evidence and reasons that it acquired after that date to justify its decision not to release petitioner then. In other words, * * * the Board could not rely on petitioner’s 1998 psychological evaluation to justify its decision to postpone petitioner’s 1997 parole release date.”
(Emphasis added.) We have understood Hamel to mean that, “if a release date was scheduled and elapsed without the board first having found a valid reason to postpone release, but the inmate was erroneously not released, later events cannot furnish a basis for postponing release; the inmate is entitled to immediate release.” Rivas v. Persson, 256 Or App 829, 835-36, 304 P3d 765 (2013), rev dismissed, 354 Or 841 (2014) (emphasis added).
Likewise, in this case, the board lacked authority to postpone petitioner’s release date, absent a timely hearing and a timely finding under ORS 144.125 (1991). After that release date had passed, it does not suffice to later find a reason to have postponed his release. See Atkinson v. Board of Parole, 280 Or App 410, 419, 382 P3d 567 (2016). The board failed to release petitioner on his scheduled release date. Therefore, we reverse and remand with a direction that the board reinstate petitioner’s release date as last lawfully provided in BAF #3 and #4.
Reversed and remanded.
Throughout the opinion, reference to ORS 163.095 is to the version which became effective on August 5, 1991, and was in effect at the time petitioner committed the offense. See Or Laws 1991, ch 837, § 12.
The autopsy revealed a skull fracture and contusions in Ward’s brain.
Petitioner pleaded guilty by Alford plea. North Carolina v. Alford, 400 US 25, 91 S Ct 160, 27 L Ed 2d 162 (1970).
ORS 163.105 (1)(c) (1991) provides:
“If sentenced to life imprisonment, the court shall order that the defendant shall be confined for a minimum of 30 years without possibility of parole, release on work release or any form of temporary leave or employment at a forest or work camp.”
The statute has been modified since then numerous times.
ORS 144.125(1) (1991) provides, in part:
“Prior to the scheduled release of any prisoner on parole and prior to release rescheduled under this section, the board may upon request of the Department of Corrections or on its own initiative interview the prisoner to review the prisoner’s parole plan and psychiatric or psychological report, if any, and the record of the prisoner’s conduct during confinement.”
The evaluating psychologist recommended against granting parole.
The board received a number of letters asking for reconsideration. Por example, petitioner had told the board during his exit interview that he intended to rely on the assistance of a pastor in his community. That pastor submitted a letter stating that he was unwilling to serve petitioner in that capacity and that he wanted his name to be removed as the counselor on record. A district attorney’s letter pointed to multiple contradictions in petitioner’s account of the murder and in petitioner’s history of domestic violence, as he had relayed those things to the board. Another letter suggested that the board “did not have access to the Autopsy Report” at the time of the hearing. That autopsy report was also inconsistent with petitioner’s recollection of events.
The rules have been renumbered since the time of petitioner’s offense; nonetheless, throughout the opinion, we refer to the current numbers used by the parties. Beveridge v. Johnson, 157 Or App 57, 60 n 4, 967 P2d 1238 (1998).
Petitioner states that BAPs numbered 5 and 7 are the subjects of this appeal. Those BAPs correspond with the orders dated June 4, 2013, and September 30, 2013. The state notes, however, that the board had construed petitioner’s request for administrative review to be a challenge to BAF #6, “because it had issued BAP #6 to correct BAP #5, thereby replacing BAF #5.” Accordingly, we understand petitioner to challenge BAFs numbered 5, 6, and 7.
OAR 255-080-0012(2) provides, “The Board may open a case for reconsideration of a finding without receiving a request, without regard to time limits, and without opening all findings for review and appeal.”
OAR 255-080-0012(3)(c) provides that when a case is reopened for reconsideration, the board may conduct the review through an administrative hearing “in cases where review would cause an adverse result for the prisoner.”
In 1985, ORS 144.245(1) made explicit the inmate’s right to release on his or her release date. Gordon, 343 Or at 622 n 3 (citing Or Laws 1985, ch 53, §§ 2,3).
The state notes that reconvening a hearing before the June 7 release date would have forced the board to violate multiple notice provisions. See OAR 255-030-0013(1) (requiring 14-day notice before a hearing); see also ORS 144.750(2) (requiring 30-day notice to the district attorney and the victim before a hearing).
The state contends that the board did not violate administrative rules, as petitioner contends, because “OAR 255-080-0012(2) and (3) demonstrate that ‘opening’ a previous decision for reconsideration — which is all that the June 4 order accomplished — is distinct from ‘reviewing’ or reconsidering that decision.” We reject that argument without discussion. Beveridge, 157 Or App at 61 (rejecting similar argument and concluding that ‘“[r]escinding’ a parole release date necessarily requires opening the case in order to reconsider the date originally found to apply”).
In Murphy, the petitioner sought review of an order that had rescinded his release date without a hearing. 143 Or App at 607. As detailed in a dissenting opinion of this court, the board had set his release date as December 24, 1993, held exit interviews with him, and — despite a psychological evaluation concluding that the petitioner had a present severe emotional disturbance that constituted a danger to the community — reaffirmed his release date. Id. at 609 (Armstrong, J., dissenting). “On December 17, 1993, the Board issued an order rescinding petitioner’s December 24, 1993, parole release date and indicating that it would schedule an exit interview to reconsider petitioner’s [release date].” Id. (Armstrong, J., dissenting). The board later held a new exit interview and reconsidered the psychological evaluation, in addition to “new information that it had not considered at the [previous] * * * exit interviews.” Id. (Armstrong, J., dissenting). On appeal, petitioner asked us “to reverse the order and to remand with specific instructions that the Board release him.” Id. at 607. We concluded that the board had erred, but, because the petitioner had ultimately received a hearing and was denied release for a permissible reason, he was not entitled to any further remedy. Id. at 608. In other words, the petitioner “was entitled to a hearing, not to release no matter what result the hearing produced,” and he had received that hearing, albeit belatedly. Id. at 611-12 (Armstrong, J., dissenting).
Reference
- Full Case Name
- SIDNEY DEAN PORTER v. BOARD OF PAROLE AND POST-PRISON SUPERVISION
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- 2 cases
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- Published