Atkinson v. Bd. of Parole & Post-Prison Supervision

280 Or.App. 410

382 P.3d 567

David Lee Atkinson, Petitioner,

v.Board of Parole and Post–Prison Supervision, Respondent.

A152750

Court of Appeals of Oregon.

Submitted March 28, 2016.

August 31, 2016

Peter Gartlan, Chief Defender, and Marc D. Brown, Deputy Public Defender, Office of Public Defense Services, filed the opening brief for petitioner. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Marc D. Brown, Deputy Public Defender, Office of Public Defense Services, filed the reply brief for petitioner. David Lee Atkinson filed the supplemental brief pro se.

Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Jeff J. Payne, Assistant Attorney General, filed the brief for respondent.

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

ARMSTRONG, P.J.

Petitioner, who was convicted in 1985 of aggravated murder and other crimes, seeks judicial review of an order of the Board of Parole and Post Prison Supervision that set his matrix range at 228 to 288 months and established a projected parole release date of June 28, 2013. He contends that the board erred in holding a “second prison term hearing” and in imposing “a different matrix range and prison term than it did after the first prison term hearing based on the same information.” He further contends that the use of a three-member board to decide those issues violated the ex post facto protections of the state and federal constitutions.¹ The board responds that the case is moot² and, in any event, that it did not err in the manner asserted by petitioner. Because we agree with the board that the issues raised by petitioner are moot, we dismiss the petition and do not reach the merits of petitioner's arguments.

We begin with a brief overview of the case for context; additional factual details, pertinent to the question of mootness, are provided in our analysis of that issue.

Petitioner was convicted in 1985 of aggravated murder, robbery in the first degree, and felon in possession of a firearm, which the board later identified as petitioner's “group 1” crimes.³ For the aggravated murder conviction, he received a life sentence under ORS 163.105(2) (1983) with a mandatory minimum of 20 years' imprisonment. On July 3, 1985, the board held a prison-term hearing and, as reflected in its Board Action Form (BAF) of that date, set petitioner's matrix range at 258 to 328 months and his prison term at 264 months. The BAF also established a “release date of 6/28/2006.”⁴ Petitioner was subsequently convicted of additional crimes while incarcerated; the board refers to those crimes as petitioner's “group 2” crimes.

In 2008, the board found that petitioner had met his burden of proving that he was likely to be rehabilitated within a reasonable period of time and, under ORS 163.105(4) (1983),⁵ converted petitioner's aggravated murder sentence to life with the possibility of parole.⁶ Then, on September 7, 2011, after the Supreme Court decided Janowski/Fleming v. Board of Parole , 349 Or. 432, 245 P.3d 1270 (2010),⁷ the board held another prison-term hearing for petitioner, and determined, in BAF # 15, that his matrix range was 228 to 288 months. The board found as an aggravating factor “[r]epetition of behavior pattern which contributes to criminal conduct, return to drug abuse,” and set petitioner's prison term at the top of the matrix—that is, 288 months in prison. The board also noted that petitioner “has a consecutive 60 month prison term to serve on the group # 2 offenses, which will begin on 06/28/2008.” The board set a projected parole-release date of June 28, 2013, “following a total of 348 months (this includes the prison term on the group # 1 and # 2 offenses).” That order is the subject of petitioner's challenge in the present case.

As he did before the board, petitioner on review contends that the board erred in holding a second prison-term hearing, imposing a different matrix range and prison term than it did at the initial prison-term hearing, and making those determinations with a three-person board.⁸

The board contends that petitioner's challenge is moot because, even if the board erred in holding the 2011 “Janowski/Fleming hearing” and setting a new prison term and parole-release date for petitioner, a decision on those issues would have no practical effect on petitioner's rights. See Brumnett v. PSRB , 315 Or. 402, 406, 848 P.2d 1194 (1993) (court will dismiss appeal as moot where there is no longer a controversy and a decision from the court would, thus, “no longer * * * have a practical effect on or concerning the rights of the parties”). The board points out that, in 2012, and again in 2014, the board held exit interviews for petitioner and, in each instance, found that petitioner suffered from a present severe emotional disturbance that constituted a danger to the health or safety of the community and, therefore, deferred petitioner's parole-release date for two years. See ORS 144.125(1) (1983) (providing for an interview “[p]rior to the scheduled release of any prisoner on parole”); ORS 144.125(3) (1983) (allowing board to postpone a scheduled release date “[i]f a psychiatric or psychological diagnosis of present severe emotional disturbance such as to constitute a danger to the health or safety of the community has been made with respect to the prisoner”). Thus, the board asserts, “even if the board ‘reinstated’ the original prison term, petitioner has already received the only relief to which he would be entitled at the expiration of that term, i.e. , an exit interview.” In the board's view, the issue is controlled by our decisions in Rivas v. Persson , 256 Or.App. 829, 304 P.3d 765 (2013), and Miller v. Board of Parole , 261 Or.App. 795, 323 P.3d 980 (2014). Accordingly, we begin there.

In Rivas, the plaintiff, who was serving a sentence for aggravated murder for which he was arrested in 1987, appealed the denial of his petition for a writ of habeas corpus. The plaintiff sought the writ in 2011 on the ground that the board had not fully credited him for time served following his arrest, as was provided in the 1992 plea agreement leading to his conviction and sentence for aggravated murder. 256 Or.App. at 830–31, 304 P.3d 765.

Meanwhile, in 2010, the board had found that the plaintiff was likely to be rehabilitated within a reasonable period of time and converted his sentence—life without the possibility of parole for a minimum of 30 years—to life with the possibility of parole. Id. at 831, 304 P.3d 765. The board set a prison term according to the sentencing matrix in effect when the plaintiff committed his crime and established a projected parole-release date of June 3, 2012. Id. If the board had credited the plaintiff with all of the days that he had been incarcerated between his arrest and conviction, the projected release date would have been approximately October 8, 2010. Id.

The defendant moved to dismiss the plaintiff's appeal as moot, arguing that, even if the plaintiff were correct as to the calculation of his credit for time served, the most to which he was entitled if he prevailed on judicial review on that point was a remand requiring the board to hold an exit interview which had already been held and at which the board had postponed his projected release date by two years based on its finding that the plaintiff had a present severe emotional disturbance constituting a danger to the health or safety of the community. 256 Or.App. at 833, 304 P.3d 765. In response, the plaintiff, citing Hamel v. Johnson , 330 Or. 180, 998 P.2d 661 (2000), argued that the case was not moot, because the board had authority to postpone his release date only if it had held the exit interview before the date that he alleged he was entitled to release. In the plaintiff's view, it was “irrelevant that the board held an exit interview and decided to postpone his release date after the date on which he alleges he was entitled to be released.” 256 Or.App. at 833–34, 304 P.3d 765 (emphasis added).

We agreed with the defendant that the appeal was moot, concluding that Janowski/Fleming, rather than Hamel, governed. In Janowski/Fleming, the applicable matrix range for one of the inmates—Janowski—had already expired, and he argued that, as a result, he was entitled to immediate release because the court had authority to postpone his release only at an exit interview held before the expiration of the matrix range . 349 Or. at 456, 459, 245 P.3d 1270. The Supreme Court disagreed, concluding that, under ORS 144.125(1) (1985), because the board had not yet scheduled a release date for Janowski, the board could, after setting that date, hold an exit interview to determine whether any of the grounds for postponement were present. Id. at 459, 245 P.3d 1270.

We concluded in Rivas that Hamel

“stands for the proposition 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. That is because an inmate must be released from prison on his or her scheduled release date absent valid state action to postpone that release.”

Rivas , 256 Or.App. at 835–36, 304 P.3d 765 (emphasis in original). Janowski/Fleming, on the other hand,

“stands for the proposition that the inmate is not entitled to immediate release if a release date has not been set, even if it should have been set for a date that has already passed. In other words, if a court concludes that the board erred by setting an initial projected release date too far in the future, and the date that it should have set has already passed, the inmate does not receive a windfall in the form of release without the board first having the opportunity to determine whether there are reasons to postpone release.”

Rivas , 256 Or.App. at 836, 304 P.3d 765 (emphasis in original).

Thus, in Rivas,...