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

267 Or.App. 126

340 P.3d 150

Dennis Leroy GORDON, Petitioner

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

A151800.

Court of Appeals of Oregon.

Argued and Submitted June 17, 2014.

Decided Nov. 26, 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. Dennis Leroy Gordon filed the supplemental brief pro se.

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 review of an order of the Board of Parole and Post–Prison Supervision (the board), postponing his parole release date for 10 years 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), and that it was not reasonable to expect that petitioner would be granted release before 10 years from his current projected release date.¹ On review, petitioner contends, among other things, that (1) the “board has not offered a rational, fair, or principled explanation” for applying 1984 legal standards in determining whether he had the requisite present severe emotional disturbance in light of its prior practice of applying the 1988 legal standards to him and (2) substantial evidence does not support one of the factors on which the board relied in postponing petitioner's parole release date for 10 years. As amplified below, we reject both of those dispositive contentions. Accordingly, we affirm.

A detailed recitation of the historical facts giving rise to this case would not benefit the bench, the bar, or the public. It is sufficient to note that, in 1975, petitioner murdered a young mother in front of two of her children, after having raped the same woman a couple of weeks earlier in her home at gunpoint. After driving the woman and her children to a secluded location, he stabbed the woman repeatedly and placed her body on the floor board of the car at the feet of her children. Eventually, petitioner beheaded the woman, who may have still been alive at the time. Petitioner buried her body in gravel near the car and left with her head. The children—an infant and a two-year-old—were eventually found in the car. The two-year-old was in a semicatatonic state, softly crying for his mother.² Petitioner pleaded guilty to the rape and murder and was sentenced under the “discretionary” system to life in prison for the murder conviction and a consecutive 20–year sentence for the rape conviction.

Thereafter, in 1977, the legislature replaced the “discretionary” system with a new sentencing system known as the “matrix.”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 v. Board of Parole, 343 Or. 618, 622–23, 175 P.3d 461 (2007) (Gordon I ) (emphasis added). As pertinent here, under the matrix system, once the board sets an inmate's initial parole 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 petitioner elected into that system. That is so because of the complex procedural circumstances underlying petitioner's elections. As do the parties, we take our description of those circumstances from Gordon I.

“In August 1984, petitioner made * * * an election [into the matrix system]. The form that petitioner signed to effectuate that election recited, ‘I am aware that once I choose to receive a firm release date under the matrix, I cannot later request to be considered under the former “discretionary” system.’ The board conducted a hearing on the day petitioner made that election. It applied the matrix rules and, although the board could have denied petitioner release on parole entirely, it unanimously decided to set an initial release date of March 15, 2000.

“Petitioner sought administrative review of and ultimately attempted to appeal that decision. In the course of that appeal, the board discovered that the hearing to set petitioner's initial release date had not been recorded. The board therefore set another hearing for November 7, 1984, for the purpose of redetermining the ‘facts and findings' made at the earlier hearing. The record is unclear as to whether a hearing actually took place on November 7. However, on November 14, 1984, the board issued an order continuing the matter and stating,

“ ‘Board actions of 8/10/84 and 11/7/84 are VOID. Refer to analyst for recomputation of History/Risk score and material to be considered by the Board is to be disclosed to the inmate. Reschedule upon completion.’

“The matter was continued on two subsequent occasions ^{[ 4 ]} and petitioner eventually appeared before the board on May 15, 1985. In response to petitioner's attempt to clarify his position with regard to the August 1984 order setting his initial release date, the presiding board member, Aronson, asked petitioner whether he wanted to be considered under the matrix system. Petitioner responded no, adding that he considered himself to remain subject to the discretionary system, because the earlier order setting his release date was invalid. Aronson agreed with that assessment and then asked petitioner whether he ‘want[ed] to go under the discretionary system.’ Petitioner responded in the affirmative. Aronson then presented petitioner with a document, explaining that, if petitioner signed it, ‘we'll leave you under the discretionary system.’ Petitioner signed that document, and Aronson recapitulated, ‘[Y]ou will note on the record that [petitioner] now is [sic ] chosen to remain under the discretionary system. You are aware that you still have the option to go back?’ Petitioner again responded in the affirmative.

“On May 20, 1985, the board issued an order stating that petitioner ‘signed [an] application for purpose of remaining under the Discretionary System’ and setting a parole hearing date of September 2005. In that order, the board cited the criteria listed in former ORS 144.175 (1975). The board later amended that order to include reference to a review hearing in October 1986. In January 1986, the board issued another order clarifying that the reason for the October 1986 review hearing was that ‘[t]his inmate is under the Discretionary System. That dictates that he must be seen every two (2) YEARS.’ The board issued several additional orders between January 1986 and December 1987, all confirming that petitioner remained subject to the discretionary system.

“In August 1988, petitioner signed and submitted another request to be considered under the matrix system. Again, the form that petitioner signed to effectuate that election recited, ‘I am aware that once I choose to receive a firm release date under the matrix, I cannot later request to be considered under the former “discretionary” system.’ In response to petitioner's election, the board conducted a hearing on January 10, 1989, to determine whether to set an initial release date. A three-member majority of the board, after considering petitioner's criminal history, the seriousness of his crime, and various aggravating factors, set an initial release date of March 15, 2000, following 294 months in prison. One board member would have required petitioner to serve 300 months in prison, and one member would have denied parole release entirely because of the particularly violent nature of petitioner's crimes.

“In August 1989, the board advanced petitioner's release date by seven months. ORS 144.122(1)(a) (permitting the board to reset release date to an earlier date if it finds that petitioner has demonstrated ‘an extended course of conduct indicating outstanding reformation’). The board set a new release date of August 15, 1999.”

Gordon I, 343 Or. at 623–25, 175 P.3d 461 (footnote omitted; third through eighth brackets in Gordon I ).

In sum, as recounted by the Supreme Court in Gordon I, petitioner elected into the matrix system twice—once in 1984 and again in 1988. As noted above, 267 Or.App. at 130, 340 P.3d at 152, the parties in this judicial review proceeding—as in Gordon I and in subsequent cases concerning the postponement of petitioner's parole release date—disagree as to whether the board may rely on petitioner's 1984 election or his 1988 election in determining whether to postpone petitioner's parole release date.

“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).” Gordon v. Board of Parole, 266 Or.App. 405, 407, 338 P.3d 185 (2014) (Gordon III ). Specifically,

“[i]f [petitioner] elected into the matrix system in 1984, the board may rely on ‘both a psychiatric or

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