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

288 Or.App. 459

407 P.3d 839

Sterling Ray CUNIO, Petitioner,

v.BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.

A155898

Court of Appeals of Oregon.

Argued and submitted August 26, 2015.

November 1, 2017

Ryan T. O'Connor, Portland, argued the cause for petitioner. With him on the briefs was O'Connor Weber LLP.

Matthew J. Lysne, Salem, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Armstrong, Presiding Judge, and Hadlock, Chief Judge, and Egan, Judge.

HADLOCK, C. J.

In 1994, when petitioner was 16 years old, he and a friend kidnapped and murdered two people. Petitioner was waived into adult court and was convicted of multiple crimes, including two counts of aggravated murder. Cunio v. Premo , 284 Or.App. 698, 395 P.3d 25 (2017). The trial court imposed consecutive life sentences on petitioner's two aggravated murder convictions, to be followed by a total of 280 months' incarceration on the other convictions. Id. at 700, 395 P.3d 25. Petitioner has pursued several unsuccessful challenges to that sentence, including through multiple post-conviction proceedings. See id. at 701-02, 395 P.3d 25. Most recently, we affirmed a post-conviction court's 2013 decision granting summary judgment to the state on the ground that petitioner's various statutory and constitutional challenges to his sentence were precluded by the bar on successive petitions because he either had raised, or could have raised, those arguments in earlier post-conviction proceedings. Id. at 708-10, 395 P.3d 25.

In this case, too, petitioner challenges the length of time for which he will be incarcerated, but in a different context. Petitioner focuses not on the terms of the sentence imposed by the sentencing court, but on a 2012 order of the Board of Parole and Post-Prison Supervision establishing petitioner's prison term on the life sentences for aggravated murder. Petitioner contends, among other things, that the board impermissibly excluded evidence related to his conduct in prison and other circumstances in the years following the 1994 crimes. Because we agree with petitioner that the board erroneously excluded that evidence as legally irrelevant to the questions before it, we reverse and remand on that basis. Consequently, we do not reach petitioner's other assignments of error, except to explain, because the issue likely will arise on remand, that the board must address in the first instance the allocation of the burden of proof when an inmate challenges the use of "uncounseled" juvenile adjudications in calculating the inmate's prison term.

I. FACTUAL AND PROCEDURAL BACKGROUND

As a young teenager, petitioner committed multiple acts that would have constituted crimes had he been an adult, including unauthorized use of a motor vehicle (UUMV), theft, criminal mischief, fourth-degree assault, and trespass. By the time petitioner was 16 years old, juvenile-court petitions were pending against him on additional UUMV allegations, as well as allegations of forgery and second-degree robbery. Petitioner then committed the crimes that have led to his lengthy prison sentences; in 1994, he kidnapped, robbed, and murdered two people—an 18-year-old woman and a 21-year-old man. Cunio, 284 Or.App. at 700, 395 P.3d 25. Petitioner was waived into adult court and convicted, following a stipulated facts trial, of two counts of aggravated murder, two counts of first-degree kidnapping, and two counts of first-degree robbery. Id. at 701, 395 P.3d 25.

Under the law then in effect, the trial court imposed life sentences on each of the aggravated murder convictions pursuant to ORS 163.105 (1993) and ordered those sentences to run consecutively. Id. at 701, 395 P.3d 25. On the kidnapping and robbery convictions, the court imposed upward durational departure sentences under the sentencing guidelines, resulting in a total of 280 months' imprisonment for those convictions.¹ Id. The court ordered the guidelines sentences to run consecutively to the life sentences on the aggravated murder convictions and, other than the 20-month sentences imposed on each of the two first-degree robbery convictions, see 288 Or.App. at 461 n. 1, 407 P.3d at 841 n. 1, to each other.

In 1997, while incarcerated, petitioner stabbed a corrections officer and was convicted, pursuant to a guilty plea in 1998, of second-degree assault. For that offense, he was sentenced to 70 months' imprisonment, to be served consecutively to the sentences he already was serving.

In 2011, the Supreme Court addressed an anomalous circumstance related to the life sentences for juveniles—like petitioner—who committed aggravated murder between certain dates in 1989 and 1995, i.e., that, although those inmates' life sentences entitled them to the possibility of parole, "the board had no rules governing parole decisions for them."

State ex rel. Engweiler v. Felton , 350 Or. 592, 599, 260 P.3d 448 (2011) ; see State ex rel. Engweiler v. Cook , 340 Or. 373, 381-82, 133 P.3d 904 (2006) (describing the "small class of inmates who," for a few years after the sentencing guidelines went into effect on November 1, 1989, "continued to receive indeterminate sentences—those inmates who, like petitioner, committed aggravated murder but who were juveniles at the time of their crimes"). The Supreme Court ultimately concluded that, under the pertinent versions of ORS 144.120(1)(a), those juveniles with aggravated murder convictions had been entitled to hearings at which the board would either set initial parole release dates, or (in certain circumstances) could decline to do so. State ex rel. Engweiler v. Felton, 350 Or. at 627, 260 P.3d 448.

In light of that Supreme Court decision, the board conducted a prison-term hearing for petitioner in October 2012. Applying the matrix and guidelines applicable to adult offenders at the time petitioner committed the aggravated murders, the board determined that petitioner's matrix range was "576 to life."² Accordingly, the board established a 576-month prison term and set a parole release date on petitioner's life sentences of April 19, 2042, "after which petitioner would begin serving the 280 months to which he was sentenced on his kidnapping and robbery convictions." Cunio, 284 Or.App. at 702, 395 P.3d 25.

Petitioner timely sought administrative review. Among other things, petitioner argued that the board had, in essence, impermissibly required that petitioner remain incarcerated for life, had erred in calculating his matrix range, and had erred in precluding petitioner from introducing mitigating evidence related to events that occurred during the years that had passed since he murdered his victims, that is, to petitioner's "circumstances after his convictions." The board rejected each of those arguments and, in an October 2013 order, denied petitioner relief. Petitioner timely sought judicial review in this court, where he has reiterated many of the arguments he made to the board.

II. ANALYSIS

Because it is dispositive, we begin our analysis with petitioner's third assignment of error, in which he challenges the board's decision not to consider certain proffered evidence at his October 2012 prison-term hearing. Before we begin that discussion, however, we pause to briefly describe the prison-term hearing process as it relates to petitioner.

At the time of the aggravated murders, ORS 144.120(1)(a) (1993)³ set out timelines under which the parole board was required to conduct hearings for certain inmates, upon their admission to a state correctional institution, to determine each inmate's "initial date of release on parole," unless the board chose not to set a parole release date under the limited circumstances in which it was allowed to do that. See ORS 144.120(4).⁴ An inmate's initial parole release date, sometimes referred to as the "projected parole release date," established the minimum length of time that the inmate would remain incarcerated before being released on parole, based on matrix ranges of imprisonment—and variations to those ranges for aggravating and mitigating circumstances—that the legislature directed the board to establish by rule. ORS 144.120(2) ; ORS 144.780 ; ORS 144.785 ; see Gordon v. Board of Parole , 343 Or. 618, 621-22, 175 P.3d 461 (2007) (describing process). Thus, the ORS 144.120(1)(a) hearings became known as "prison-term hearings."

As previously mentioned, in State ex rel. Engweiler v. Felton, 350 Or. at 627, 260 P.3d 448, the Supreme Court concluded that ORS 144.120(1)(a) applied to juvenile aggravated murderers—reasoning that an exemption added in 1991 referred to the timing requirement only⁵ —and, therefore, the board was required to conduct parole hearings under ORS 144.120(1)(a) for juvenile aggravated murderers. Subsequently, the board amended OAR 255-032-0005 to provide the following:

"(4) Inmates, who were juveniles and waived to adult court pursuant to ORS 419C.340 through 419C.364, and were under the age of 17 years at the time of their crime(s), and were convicted of Aggravated Murder, per ORS 163.095, and whose crimes were committed after October 31, 1989 and prior to April 1, 1995, shall receive a prison term hearing. At the hearing, the Board shall set a projected parole release date, in accordance with the guidelines and matrix that apply with respect to the date of the crime.

"(5) The Board will apply the applicable procedural rules under OAR divisions 30 and 35, in effect at the time of the hearing, for the conduct of the hearing."

Accordingly, in October 2012, the board held a prison-term hearing to determine petitioner's projected parole release date on his aggravated murder sentences, applying the guidelines and matrix in effect for adult offenders at the time he committed those crimes.

With that background in mind, we return our focus to petitioner's third assignment of error. At the October 2012 hearing, petitioner sought to...