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

266 Or.App. 405

338 P.3d 185

Dennis Leroy GORDON, Petitioner

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

No. A146845.

Court of Appeals of Oregon.

Argued and Submitted June 17, 2014.

Decided Oct. 22, 2014.

Stephanie J. Hortsch, Deputy Public Defender, argued the cause for petitioner. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Carolyn Alexander, Senior Assistant Attorney General, argued the cause for respondent.

With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before DEVORE, Presiding Judge, and HASELTON, Chief Judge, and GARRETT, Judge.

Opinion

HASELTON, C.J.

Petitioner seeks judicial review of an order of the Board of Parole and Post–Prison Supervision (the board), postponing his parole release date for 24 months on the ground that he had “a present severe emotional disturbance such as to constitute a danger to the health or safety of the community.” ORS 144.125(3)(a).¹ The dispositive issue on review is whether the board's decision to postpone petitioner's release date is supported by substantial evidence in the record, where petitioner's psychological evaluation states that he “could” constitute a danger to the health or safety of the community. As explained below, we conclude that the board's finding that petitioner's psychological evaluation demonstrated that he had a present severe emotional disturbance that constituted a danger to the health or safety of the community is supported by substantial evidence. Accordingly, we affirm.

A detailed recitation of the historical facts and procedural circumstances giving rise to this case—which have been previously recounted by us and the Supreme Court, see Gordon v. Board of Parole, 343 Or. 618, 175 P.3d 461 (2007)(Gordon I ); Gordon v. Board of Parole, 246 Or.App. 600, 267 P.3d 188 (2011), rev. den., 352 Or. 341, 288 P.3d 275 (2012)(Gordon II )—would not benefit the bench, the bar, or the public.² It is sufficient to note that, in 1975, petitioner raped and murdered a young mother in Roseburg. He was sentenced under what was known as the “discretionary” system to life in prison with the possibility of parole for the murder conviction and a consecutive 20–year indeterminate sentence for the rape conviction.

Thereafter, in 1977, the legislature replaced the “discretionary” system with a new sentencing system—viz., the “matrix” system.³ As the Supreme Court explained,

“[a]fter the legislature adopted the matrix system, the board adopted a policy under which it would permit inmates like petitioner, who were serving indeterminate sentences [under the discretionary system], to elect to be treated under the new matrix system. Over time, as the board amended its rules pertaining to the implementation of the new system, the board applied a policy under which it would consider each inmate's eligibility for release according to the statute and rules in effect when the inmate committed his or her crimes. For inmates who committed their crimes before the adoption of the matrix system and later elected to be treated under that system, the board applied a policy of determining the inmate's eligibility for parole according to the statute and rules in effect at the time of the inmate's election into the matrix system.”

Gordon I, 343 Or. at 622–23, 175 P.3d 461. As pertinent here, under the matrix system, once the board sets an initial release date, the board may postpone that date only if, among other reasons, 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).

Although the parties agree that the matrix system applies to this case, they disagree as to when defendant elected into that system. That is so because, in 1984, petitioner signed a request to be treated under the matrix system. Then, in 1985, the board issued an order stating that petitioner had signed an application for the purpose of remaining under the discretionary system. Ultimately, in 1988, petitioner again signed a request to be considered under the matrix system.

The date of petitioner's election into the matrix system is significant because it affects the information on which the board may rely in determining whether petitioner has a present severe emotional disturbance for purposes of ORS 144.125(3)(a). If he elected into the matrix system in 1984, the board may rely on “both a psychiatric or psychological diagnosis and other pertinent evidence in the record”—that is, all evidence in the record. See Weidner v. Armenakis, 154 Or.App. 12, 20, 959 P.2d 623, vac'd and rem'd, 327 Or. 317, 966 P.2d 220 (1998), dismissed by order July 13, 1998, reasoning re adopted and reaffirmed in Merrill v. Johnson, 155 Or.App. 295, 964 P.2d 284, rev. den., 328 Or. 40, 977 P.2d 1170 (1998).⁴ However, if petitioner did not opt into the matrix system until 1988, the board could rely only on the psychological evaluation in determining whether he has a present severe emotional disturbance.See Peek v. Thompson, 160 Or.App. 260, 265–66, 980 P.2d 178, rev. dismissed, 329 Or. 553, 994 P.2d 130 (1999). That is so because an administrative rule, which was in effect during that time, imposed “a greater limit on the [b]oard's authority to extend a release date.” Id. at 265, 980 P.2d 178 ; see generally id. at 264–66, 980 P.2d 178 (discussing OAR 255–60–006 (1988), which provided in part that, “[i]f the evaluation does not make a finding of a 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”).

Against that historic backdrop, we turn to the procedural facts giving rise to this judicial review proceeding. In March 2009, the board conducted an exit interview with petitioner. Before the hearing, the board received a psychological evaluation from Dr. Stuckey. Because that evaluation is central to our analysis, we describe it in detail.

Stuckey began by describing the circumstances giving rise to petitioner's rape and murder convictions:

“[O]n September 4, 1975[,] * * * [petitioner] * * * raped the victim and forced her to commit sodomy at gunpoint. He was subsequently arrested and placed in jail. He apparently posted bail and was allowed to leave Douglas County on the condition that he would return only for the purposes of meeting with his attorney. Approximately 15 days later, [petitioner] returned to the Roseburg area. According to the deputy district attorney, [petitioner] had premeditated the murder. He had chartered an airplane at the Hood River Airport. When he arrived at the Hood River Airport, he had his face wrapped in Ace bandages with only his mouth and eyes visible. He told the pilot that he had received Napalm burns in Vietnam and he was going to the Veteran's Hospital in Roseburg for corrective surgery. When he arrived at Roseburg, he instructed the pilot to wait. He then removed the Ace bandages and called a taxi. He was carrying a manila envelope which contained a hunting knife, which was one of the murder weapons. He had the taxi drive him to the victim's husband's employment to determine that he was at work and not at home. He had entered a business and identified himself as ‘Deputy Jones' from the city police department and requested to use a phone in order to call the victim's husband's employment to determine whether he was at work. In discovering that the victim's husband was at work, he walked to the victim's home. He then drove the victim to a construction site.

“In his taped confession, he stated that he almost let the victim go three or four times, but he thought about the trouble and expense in coming to the Roseburg area and decided to kill the victim so he would not have to worry about her any further. He stabbed the victim near the construction site and left the victim bleeding in the car with her two young children. He then stole a pickup truck and traveled back to the victim's car and placed the victim in the pickup and drove to a construction site where he beheaded her with a second knife and placed her body in a trench and covered it with gravel. He then drove three-quarters of a mile to another construction site and buried the victim's head. He then abandoned the pickup and obtained a ride to the local airport. He returned to Hood River on the same charter plane. He had clean clothes hidden under his seat at the Hood River Airport and he changed into the clean clothes. He placed the bloody clothes in a trash barrel at the service station.”

In discussing the rape and murder, petitioner told Stuckey that, after he posted bail, he thought that he had “ ‘[a] mission’ ” and that, when he realized that the victim would not go along with his wishes, he “felt angry” and that “ ‘[he] had to do what [he] had to do.’ ”

In describing his interview findings, Stuckey stated that petitioner

“was not able to penetrate below the surface of his preoccupation with diagnostic labels, including his report of [post-traumatic stress disorder (PTSD) ]. He did not display any genuine feelings or empathy for the victim, in spite of his verbalization to the contrary. He certainly appeared to be a controlling individual during this interview, just as he did in the past. He appeared egocentric, narcissistic[,] and self-absorbed throughout the interview process.”

(Emphasis added.) Although petitioner did not exhibit overt signs “indicative of a psychotic process” and there did not “appear to be a major affective disorder,” Stuckey noted that petitioner “presented as having a characterological disorder of longstanding” and “was certainly not in remission at the time of our interview.” Further, Stuckey explained that petitioner “continues to present with a controlling fashion with glib and superficial responses and a failure to experience deep, empathic-feeling concern for the victim.”

Stuckey also conducted “objective psychological...