Carter v. Board of Parole

196 P.3d 111

223 Or. App. 745

John M. CARTER, Petitioner, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.

A129301.

Court of Appeals of Oregon.

Argued and Submitted May 14, 2008.

Decided November 12, 2008.

Richard L. Cowan argued the cause for petitioner. With him on the briefs was Rockwell, Cowan & Habekost.

Erin C. Lagesen, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before LANDAU, Presiding Judge, and ORTEGA, Judge, and RIGGS, Senior Judge.

ORTEGA, J.

The Board of Parole and Post-Prison Supervision (board) issued an order postponing petitioner's parole release date after it found that he had a present severe emotional disturbance that constituted a threat to the health or safety of the community. Petitioner seeks judicial review, contending that the order is not supported by substantial evidence in the record, ORS 183.482(8), and does not clearly state the reasons for the board's decision. Because we conclude that the board's order is supported by substantial evidence and that the board is not required to state the reasons for its decision, we affirm.

In 1984, petitioner murdered his ex-wife and the male friend with whom he believed she was having an affair. Following defendant's conviction, he was sentenced to life in prison. The board established a parole release date of February 26, 2004. The board subsequently granted several prison term reductions, resulting in a July 2002 release date. Shortly before that date, the board, pursuant to ORS 144.125(1), scheduled an exit interview to determine whether to defer petitioner's release.¹

In preparation for the interview, Dr. Carlson conducted a psychological evaluation of petitioner in late 2001. Petitioner's results on one psychological test, the MMPI-2, indicated that he had "a below average need for mental health programming" and did not indicate any socially deviant attitudes. However, his MCMI-III results indicated that he showed "an apprehensive mistrust of others, an edgy defensiveness against criticism" and would "actively resist exploring his motives in therapy, i.e. he will not be a willing candidate for any kind of treatment." Applying DSM-IV criteria, Carlson diagnosed petitioner as suffering from avoidant personality disorder with negativistic (passive-aggressive) personality traits. Carlson also opined that petitioner lacked insight, seemed unable "to appreciate the severity of his anger and dangerousness or his potential for future violence," and was resistant to treatment, "possibly indicating insufficient skills to cope with future social, vocational, interpersonal and basic living demands." Based on Carlson's evaluation, the board found that petitioner suffered from a present severe emotional disturbance that constituted a danger to the health or safety of the community and deferred petitioner's release date until July 2004. Petitioner did not seek review of that determination.

Before his July 2004 release date, petitioner submitted to two psychological evaluations. Carlson again evaluated petitioner in late 2003; his impressions were generally unchanged. Petitioner's DSM-IV diagnoses remained the same, although Carlson opined that he did not believe that petitioner "suffer[ed] from a present severe emotional disturbance such as to constitute a danger to the community." However, Carlson remained concerned about petitioner's lack of insight. In particular, Carlson noted that petitioner, who was in a dispute with one of his sons over personal property, appeared unable to appreciate the potential for conflict with that son. Carlson expressed concern that, given the similarity between petitioner's disagreement with his ex-wife and that with his son, "the possibility of an incident [could not] be ignored" in the event of petitioner's release. As a result, Carlson recommended that, in the event of his parole, petitioner not be permitted to contact his son.

Petitioner was also evaluated by Dr. Starr, who, using DSM-IV criteria, diagnosed him as suffering from an anxiety disorder with features of unresolved grief and post-traumatic stress. Starr opined that petitioner was not psychopathic but, like Carlson, he was concerned that petitioner showed "very little insight into his own psychological functioning and his motivations." Starr also expressed concern that petitioner was being "somewhat evasive and deceitful" in his recollection of his ex-wife's murder. Starr was also concerned about petitioner's propensity for domestic violence, and believed that he would benefit from specific training before being paroled to address that propensity. Starr conceded that petitioner's risk of violence would be low so long as he avoided romantic relationships. Nevertheless, Starr cautioned that, if petitioner again engaged in a relationship with a woman, she would be at risk for domestic violence.

At petitioner's exit interview, he told the board that, if he were released, he planned to live with his sister. Petitioner, who was 71 years old at the time of the interview, also disclaimed any intention of entering into a romantic relationship. Petitioner denied that he had a history of domestic violence—yet he acknowledged that he had previously struck his ex-wife, asserting that he had done so on only one occasion. Petitioner denied that his ex-wife had obtained a restraining order against him. On being told that, in the affidavit seeking the restraining order, his ex-wife stated that he had threatened to kill her, petitioner denied ever doing so. However, he was unable to explain why his ex-wife would have lied. Petitioner acknowledged that he had received no psychiatric treatment during his incarceration, explaining that he did not believe that he needed it.

As noted, following the interview, the board again found that petitioner suffered from a present severe emotional disturbance that constituted a threat to the health or safety of the community and deferred his release date for two years. Petitioner seeks review of that determination.

We begin with petitioner's contention that the board's order is not supported by substantial evidence. Petitioner contends that nothing in the reports prepared by...