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

246 Or.App. 600

267 P.3d 188

Dennis Leroy GORDON, Petitioner,

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

No. A141088.

Court of Appeals of Oregon.

Argued and Submitted Feb. 07, 2011.Decided Nov. 23, 2011.

Harrison Latto, Portland, argued the cause and filed the brief for petitioner.

Carolyn Alexander, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.

Before SCHUMAN, Presiding Judge, and BREWER, Chief Judge, and WOLLHEIM, Judge.

WOLLHEIM, J.

Petitioner seeks judicial review of a Board of Parole and Post Prison Supervision order that, on remand from the Supreme Court, deferred his release date from August 1999 to August 2001. The Supreme Court had held that the board had inconsistently applied a 1984 administrative rule to petitioner rather than the 1988 administrative rule. The court remanded for the board to provide a rationale for that inconsistency. Gordon v. Board of Parole, 343 Or. 618, 175 P.3d 461 (2007). On remand, the board explained its decision; and, alternatively, the board applied its 1988 rules. Under either the 1984 rule or the 1988 rule, the board deferred petitioner's release date for two years. Petitioner contends that both of the board's justifications for deferring his release date are erroneous. We affirm.

The facts are taken from the record. On September 4, 1975, petitioner arrived in Roseburg after committing a robbery and several thefts in Medford. He engaged a husband and wife, both strangers, in conversation outside of their home and then entered their residence after observing the husband drive away. Petitioner, at gunpoint, sodomized and raped the wife and told her that he or his friends would “get her” if she told anyone about the attack. After petitioner left, the victim reported the crime to the police, and petitioner was quickly apprehended. Petitioner was released on bail, and he returned home to The Dalles.

Three weeks later, petitioner chartered a plane and returned to Roseburg, carrying a hunting knife that he had purchased two weeks earlier. Upon arrival, he confirmed that the victim's husband was away and then entered the victim's house through the unlocked front door. Petitioner told the victim that he had a gun and that she must go with him. She said she would go if she could bring her children with her. Petitioner put the victim and her two children (aged six months and two years old) into her car. He drove the car away from the city and then stopped the car. Petitioner attacked the victim in front of her children by stabbing her repeatedly in the chest and abdomen and placed her body on the rear floorboards of the back seat at the feet of the two-year-old child. At some point petitioner severed the victim's head using a pocket knife, believing this would make identification of the body more difficult.¹ Petitioner removed the decapitated body from the car, hid the body in a drainage ditch, and covered the body with gravel.² Petitioner abandoned the car and the children and secured a ride in a passing vehicle to a plywood plant. There he stole a pickup truck from the plant parking lot. He placed the victim's head on the right front floorboards of the pickup and drove to a construction site about a half-mile away, where he buried the victim's head.

Petitioner then drove to the airport and returned to Hood River in the same chartered plane he arrived in. In Hood River, petitioner immediately changed into an extra set of clothes he had left under the seat of his pickup. Then he drove home to The Dalles and was soon placed under arrest for the murder.

Meanwhile the victim's children remained in the car for approximately two and a half hours before they were found, covered in blood. The two-year-old was in a semicatatonic state, softly crying for his mother. Later that evening after 10:00 p.m., police observed what appeared to be a decapitated body lying in a drainage ditch, almost totally covered with gravel, and determined it might be the woman who had been raped three weeks earlier and was missing from the abandoned vehicle. When questioned later, petitioner lied, claiming that he murdered the victim after she had taken a knife from the glove box and swung it at him, and that the victim fabricated the rape charge to make her husband jealous.

We explain relevant procedural background to the parties' dispute in some detail regarding which rules the board should have applied: the 1984 or 1988 rules. Generally, the board assigns an inmate a parole release date, which the board can later defer. See Gordon, 343 Or. at 620–22, 175 P.3d 461 (describing the board's process in setting parole release dates and making parole release decisions). The permissible bases for the board to defer an inmate's release date differ depending on the rules that govern the inmate's sentence and those rules flow from two prior systems known as the discretionary and the matrix systems. Id. The discretionary system was in effect when petitioner committed his crimes in 1975. However, after the matrix system was enacted in 1977, the board established a policy allowing inmates to opt into the matrix sentencing.³ Pursuant to that policy, petitioner opted into the matrix in 1984, out of the matrix in 1985, and back into the matrix in 1988. The parties agree that the matrix system applies to petitioner's case.

Under the matrix system, the board may defer a petitioner's release date if the board finds that the inmate “has a present severe emotional disturbance such as to constitute a danger to the health or safety of the community.” ORS 144.125(3)(a).⁴ Here, the board found that petitioner had such a severe emotional disturbance and deferred petitioner's release date. The parties agree that, if the board finds that petitioner has a severe emotional disturbance, it may defer his release date under ORS 144.125(3)(a).

The parties disagree, however, on whether the board could apply the 1984 administrative rule or must apply the 1988 administrative rule to petitioner. ⁵ That choice carries an evidentiary consequence. In 1984, the board's practice was to review the entire record to determine whether an inmate had a severe emotional disturbance under ORS 144.125(3)(a). ⁶ Weidner v. Armenakis, 154 Or.App. 12, 959 P.2d 623, vac'd and rem'd, 327 Or. 317, 966 P.2d 220 (1998), dismissed by order July 13, 1998, reasoning readopted and reaffirmed in Merrill v. Johnson, 155 Or.App. 295, 964 P.2d 284, rev den., 328 Or. 40, 977 P.2d 1170 (1998). However, in 1988, the board revised the rule. OAR 255–60–006 (1988) provided, in part:

“(7) The Board may order a psychiatric/psychological report anytime prior to 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.”

See also Peek, 160 Or.App. at 264–65 n. 3, 980 P.2d 178 (concluding that “evaluation” in subsection (8) of the rule was a reference to the “psychiatric/psychological report” referenced in subsection (7) of the rule). Thus, had the board applied the 1988 rules, it could have relied only on the psychiatric or psychological report in the record to determine whether petitioner had a severe emotional disturbance. Id. at 265, 980 P.2d 178. But, because the board applied the 1984 rules, it relied on the evidence in the entire record to determine whether petitioner had a severe emotional disturbance. Weidner, 154 Or.App. at 17–20, 959 P.2d 623.⁷

Petitioner sought judicial review, arguing that the board should have applied the 1988 rule and released him on his August 1999 parole release date. On judicial review, the Supreme Court concluded that the board had a policy under which it normally would have applied its 1988 rule in petitioner's case. Gordon, 343 Or. at 634, 175 P.3d 461. The court reversed and remanded to the board because the board had not provided a rational, fair, and principled explanation for the inconsistency. Id. at 637, 175 P.3d 461.

On remand, the board attempted to provide a rationale for its application of the 1984 rule. Alternatively, citing an abundance of caution, the board applied the 1988 rule and relied solely on the psychiatric report in the order—consistently with the Supreme Court's description of the board's policy—and deferred petitioner's release date for two years.

Petitioner seeks judicial review of that order, arguing that the board's explanation for its inconsistency is insufficient. Petitioner also contends that the board's alternative basis—its application of the 1988 rule—was erroneous, because the psychologist's report did not provide substantial evidence that petitioner had a severe emotional disturbance. We review the board's order to determine whether it is supported by substantial evidence in the record. ORS 183.482(8)(c); Gordon, 343 Or. at 633, 175 P.3d 461. Because it is dispositive, we focus on the board's alternative basis for deferring petitioner's release date: that the psychological evaluation supports a finding that petitioner suffered from a severe emotional disturbance.⁸

In October 1998, Dr. Page completed the psychological evaluation. Page's evaluation begins by characterizing petitioner's crimes as “particularly egregious and premeditated,” reflecting “an extremity of premeditated aggression and deep seated vindictiveness,” and resulting from “the outgrowth of characterological dysfunction.” Page also noted that petitioner was vocationally stable prior to committing those crimes.

Based on petitioner's “considerably more...