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

272 Or.App. 183

355 P.3d 166

Carey David EDWARDS, Petitioner

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

A147268.

Court of Appeals of Oregon.

Argued and Submitted Oct. 31, 2013.

Decided July 8, 2015.

Kyle Krohn, Deputy Public Defender, argued the cause for petitioner. On the brief were Peter Gartlan, Chief Defender, and Jonah Morningstar, Deputy Public Defender, Office of Public Defense Services.

Gregory A. Rios, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Ryan Kahn, Assistant Attorney General.

Before ARMSTRONG, Presiding Judge, and NAKAMOTO, Judge, and EGAN, Judge.

Opinion

ARMSTRONG, P.J.

Petitioner seeks review of a Board of Parole and Post–Prison Supervision order that deferred petitioner's parole release date from December 2009 to December 2011. He assigns error to the board's decision to defer his release date, which was based on its finding that petitioner had a “present severe emotional disturbance” (PSED). Petitioner contends that the board could make that finding only if the psychological report evaluating petitioner formally diagnosed petitioner as having a PSED. Consequently, he argues that, because the psychological report explicitly stated that he did not have a PSED, the board could not defer his release date. We disagree and, for the reasons explained below, affirm the board's order.

Petitioner committed murder during a drug transaction in March 1989. He was sentenced to life in prison with the possibility of parole after a 20–year minimum term of incarceration and assigned a release date of December 26, 2009. Petitioner was sentenced under the “matrix” system, which required the board to assign petitioner an initial parole release date within a specified time of being admitted to an Oregon correctional institution. See ORS 144.120(1) (1989), amended by Or. Laws 1991, ch. 126, § 6. Under ORS 144.125(3) (1989), amended by Or. Laws 1993, ch. 334, § 1, the board was allowed to modify that release date “if a psychiatric or psychological diagnosis of [PSED]” was made.¹ At the time that defendant committed his crime, the board had adopted OAR 255–60–006 (1988), which provided that the board could defer an inmate's release date by up to 24 months if the inmate had a PSED. As part of that process, the board could order that a psychologist examine the inmate and document the psychologist's findings regarding the inmate. See OAR 255–60–006 (1988).

In anticipation of petitioner's 2009 parole-consideration hearing, the board ordered that a psychologist examine petitioner. The psychologist's report states:

“[Petitioner] does not suffer from a severe emotional disturbance such as to constitute a danger to the community. Diagnosis would be Antisocial Personality, and, by history, Alcohol and Polysubstance Dependence.

“ * * * [Petitioner's] record is clearly one of a very habitual criminal, some of his criminal history seemingly quite professional in the sense of being [a] planned-out, daily lifestyle, somewhat analogous to that by which most of us go to our jobs. Given the depth of that history, there would be concern that he would return to illegal activity, most likely [of] a larcenist or drug[-]trafficking nature, and any potential for violence would probably be ancillary to that lifestyle. Such danger would be considered significant, although not nearly as acute as that for an inmate with a more habitually aggressive arrest record, or a record of volatility within the institution. He has kept control of himself during this incarceration, and one would expect the same to continue, albeit to potentially [be] jeopardized, should he return to other criminal activity.”

On the basis of that report, the board determined that “the psychological evaluation does constitute a finding that the offender has a present severe emotional disturbance such as to constitute a danger to the health or safety of the community” and deferred for 24 months petitioner's release on parole.

Petitioner sought administrative review of the board's decision, arguing, among other things, that the board had erred “when [it] fail[ed] to follow the recommendation of [the psychologist] for ‘Release’ when he clearly states that the petitioner ‘does not suffer from a severe emotional disturbance such as to constitute a danger to the community.’ ” The board denied petitioner's request for review on the grounds that petitioner's arguments “are not supported by the factual record, * * * are without merit, or some combination of these factors.” Petitioner, having exhausted his administrative remedies, now seeks judicial review.

Petitioner renews his argument that “the board could defer an inmate's release only if the inmate's psychological * * * report contained a formal [PSED] diagnosis.” To make that argument, petitioner relies on OAR 255–60–006 (1988), which provides, as relevant:

“(1) At any time prior to a prisoner's scheduled parole release date, the Board may conduct a parole release hearing to review the prisoner's parole plan, psychiatric/psychological reports, if any * * *.

“ * * * * *

“(7) The Board may order a psychiatric/psychological report anytime prior to the release. If the record indicates that a psychiatric or psychological condition of severe emotional disturbance, such as to constitute a danger to the health or safety of the community, is present, the Board may consider deferring parole release until a specified future date.

“(8) If the evaluation does not make a finding of severe emotional disturbance such as to constitute a danger to the health or safety of the community, the Board shall affirm the parole release date and set parole conditions.”

Petitioner argues that we held in Peek v. Thompson, 160 Or.App. 260, 980 P.2d 178, rev. dismissed, 329 Or. 553, 994 P.2d 130 (1999), that that regulation laid out a two-step process. First, he posits, the report must contain a “formal finding” of PSED, OAR 255–60–006(8) (1988), and, only then, can the board consider deferring petitioner's release date under OAR 255–60–006(7) (1988). Consequently, petitioner argues, the board did not have the authority to defer his release date because the psychological report concluded that he did not have a PSED.

The board offers a different reading of OAR 255–60–006 (1988) and Peek. The board contends that we held in Peek that, before determining whether it will defer an inmate's release date under OAR 255–60–006 (1988), the board must determine whether “the psychologist's report supports the board's finding of PSED.” Therefore, the board's argument continues, when reviewing the board's determination that a petitioner had a PSED, the reviewing court's task is to determine whether there was substantial evidence to support the board's conclusion, not whether the psychologist made a formal finding of PSED. In support of that reading of OAR 255–60–006 (1988) and Peek, the board notes that we stated in Gordon v. Board of Parole, 246 Or.App. 600, 610, 267 P.3d 188 (2011), rev. den., 352 Or. 341, 288 P.3d 275 (2012), that PSED is a legal rather than a medical term. If that is the case, it argues, then it logically follows that the board, rather than a psychologist, is in the best position to determine whether the psychologist's report supports a finding of PSED.

Given the parties' disagreement about how OAR 255–60–006 (1988) works, we begin with an overview of our case law interpreting that rule and other relevant statutes. Ironically, our discussion of that rule begins with Weidner v. Armenakis, 154 Or.App. 12, 959 P.2d 623, vac'd and rem'd, 327 Or. 317, 966 P.2d 220 (1998), withdrawn by order July 17, 1998, reasoning reaffirmed and readopted in Merrill v. Johnson, 155 Or.App. 295, 964 P.2d 284, rev. den., 328 Or. 40, 977 P.2d 1170 (1998),² a case in which neither party mentioned OAR 255–60–006 (1988).

In Weidner, the petitioner appealed the board's decision to defer his release date, which was based on a determination that he had a PSED. The petitioner argued, among other things, that the board had erred because the psychologist's report did not diagnose him as having a PSED and, consequently, the board could not defer his release date under ORS 144.125(3) (1993). Weidner, 154 Or.App. at 19, 959 P.2d 623. The petitioner failed to make any argument under OAR 255–60–006 (1988). We rejected the petitioner's argument and held that

“the determination as to whether a prisoner suffers from a [PSED] such as to constitute a danger to the health and safety of the community is a judgment that the legislature intended the Board to make. Although a psychiatric or psychological diagnosis is a prerequisite to the Board's consideration of whether the statutory criteria have been met, that diagnosis alone does not dictate the result. ORS 144.125(3) (1991) allows the Board to consider both a psychiatric or psychological diagnosis and other pertinent evidence in the record in exercising its judgment as to whether the prisoner's release should be deferred.”

Id. at 19–20, 959 P.2d 623. That passage states that, although the psychological report must contain a diagnosis of some emotional disorder, it is the board that determines whether an inmate has a PSED.

We were presented with a similar series of questions in Peek, another case in which the petitioner appealed the board's decision to defer his release date on the ground that he had a PSED. In that case, the psychologist had diagnosed the petitioner with “Mixed Personality Disorder with Antisocial and Narcissistic Features” and concluded that the petitioner was still a danger to the community. Peek, 160 Or.App. at 267, 980 P.2d 178. Nothing in Peek suggests that the psychologist's report contained a formal finding that the petitioner had a PSED. The board proceeded to defer the petitioner's release date, finding that—based on all the information before it and not just the psychologist's report—petitioner had a PSED. On...