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

283 Or.App. 650

391 P.3d 831

John Ray JONES, Petitioner,

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

A154701

Court of Appeals of Oregon.

Argued and submitted March 10, 2015.

February 15, 2017

Lindsey Burrows, Deputy Public Defender, argued the cause for petitioner. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Andrew M. Lavin, 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 Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

ORTEGA, P.J.

The Board of Parole and Post-Prison Supervision postponed petitioner's parole release date based on a finding that he had a present severe emotional disturbance (PSED) that constituted a threat to the health or safety of the community. That finding was based on a psychological evaluation of petitioner conducted in 2011, prior to his scheduled release date. The board later reopened the case for administrative review of its order. As part of the review process, and after petitioner's release date had passed, the board ordered him to undergo a second psychological evaluation and exit interview. The board ultimately affirmed its earlier decision to postpone petitioner's release based primarily on the second evaluation. Petitioner seeks judicial review, raising several interrelated arguments. Generally, he argues that the record—which he contends should only encompass the first psychological evaluation—does not support the board's initial finding that he had a PSED and, as such, the board's decision is not supported by substantial evidence and substantial reason. Further, petitioner argues that the board was not authorized to rely upon the second psychological evaluation and exit interview to justify its earlier decision to defer his release date. As we explain below, we agree with petitioner. Reviewing the board's determinations for legal error, Porter v. Board of Parole , 281 Or.App. 237, 238, 383 P.3d 427 (2016), we reverse and remand.

We begin with the relevant history of these proceedings. On May 30, 1988, at age 17, petitioner murdered a young woman. He was convicted of murder and third-degree robbery and was ultimately sentenced to life in prison with the possibility of parole. See State v. Jones , 315 Or. 225, 844 P.2d 188 (1992) (vacating petitioner's mandatory minimum sentence). The board set petitioner's parole release date for June 30, 2012.

In September 2011, in anticipation of petitioner's release date, petitioner underwent a psychological evaluation conducted by Dr. Templeman. As part of that evaluation, petitioner participated in several assessments, the results of which were generally positive. In his evaluation, Templeman observed that petitioner was "clearly prepared for the interview, alert and well oriented, and displayed no symptoms of major depression, loose associations of thought or hyperactivity." With regard to petitioner's personality functioning, Templeman's report indicated that petitioner was less defensive than in a previous assessment and that he represented "one of the best adjusted types of offenders in institutional settings." He added that petitioner's profile was "relatively free from any mood disorder, psychotic disorder, or schizoid adjustment, and reflect[ed] a positive attitude toward authority, an acknowledgment of risk for substance abuse, but also some lingering alienation from family." Templeman diagnosed petitioner with Mixed Personality Disorder with Cluster B Features; however, he concluded that petitioner's "risk for violent activity upon release is relatively low and will likely remain so if he participates in follow up treatment to maintain abstinence from drugs and alcohol and personal therapy."

In November 2011, the board conducted an exit interview with petitioner during which the board asked petitioner about his crime and future parole plans. Shortly thereafter, the board issued Board Action Form (BAF) 12 in which it found that petitioner had a PSED. That order states:

"The Board determines that the psychological evaluation does constitute a finding that you have a present severe emotional disturbance such as to constitute a danger to the health or safety of the community. This determination is based solely on the psychological evaluation. The Board has considered this matter under the * * * substantive standard in effect at the time of the commitment offenses, and under all applicable rules and laws."

(Emphasis added.) Based on that finding, the board postponed petitioner's release date until June 30, 2016. See ORS 144.125(3) (1987), amended by Or. Laws 1993, ch. 334, § 1 ("If a psychiatric or psychological diagnosis of present severe emotional disturbance such as to constitute a danger to the health or safety of the community has been made with respect to the prisoner, the board may order the postponement of the scheduled parole release until a specified future date.").¹

In December 2011, petitioner timely sought administrative review of BAF 12. In his administrative review request form, petitioner contended that there was no substantial evidence to sustain the board's ruling. He further claimed that, under Peek v. Thompson , 160 Or.App. 260, 980 P.2d 178, rev. dismissed , 329 Or. 553, 994 P.2d 130 (1999), the board impermissibly considered prior psychological reports and his exit interview in reaching its decision.²

In January 2013, after petitioner's release date had passed, the board, on its own motion, reopened BAF 12 for reconsideration, stating, "A new psychological evaluation will be obtained and the exit interview hearing will be reconvened on April 10, 2013 to allow inmate to present information relative to the content of the second psychological evaluation." The board held petitioner's request for administrative review until the conclusion of the reopened hearing.³

Petitioner then completed a second psychological evaluation with Dr. McGuffin. In his report, McGuffin diagnosed petitioner with Mixed Personality Disorder with Antisocial and Avoidant Personality Features, in Partial Remission. He indicated that petitioner "is still seen as repressing awareness of uncomfortable experiences or perceptions, particularly perceptions of his self that can be perplexing" and that he "still lacks important insights about his intentions." McGuffin concluded, in part, that, if petitioner "maintains a positive relationship with his wife and can find employment that fulfills his career needs, he is seen as a minimal risk to reoffend in the community" but that, if he becomes "overwhelmed while trying to adjust in the community and find a job or develop[s] a conflicted relationship with his wife, or in any case begins to abuse alcohol and drugs, then his risk to reoffend would increase from minimal to high."

Thereafter, in May 2013, the board issued Administrative Review Response 2 (AAR 2). In that response, the board explained its rationale for reopening the record. It stated that, after reviewing the record on which BAF 12 was based, it had found that Templeman's⁴ report did not "contain enough information one way or the other relevant to the determination required by ORS 144.125(3)." As a result, the board explained, "in order to establish whether there is a sound basis for deferral [of parole] under the statute, the Board, on its own motion, issued BAF # 13 * * *, reopening BAF # 12, and ordered a new psychological evaluation." The board then went on to explain why it now believed its original decision to postpone petitioner's parole was proper. In its reasoning, the board primarily relied on McGuffin's evaluation, briefly referencing Templeman's evaluation and petitioner's prior evaluations. The board clarified, however, that it referred to the "older psychological evaluations for perspective only, and did not rely on them in making its findings at the 2011 hearing." Ultimately, the board denied relief and affirmed BAF 12, concluding that it had properly determined that "the psychological evaluations constituted a finding that [petitioner had] a present severe emotional disturbance such as to constitute a danger to the health or safety of the community." On judicial review, petitioner challenges that determination.

In challenging the board's order, petitioner raises four assignments of error, which encompass two main arguments. Petitioner's first assignment and primary argument focuses on BAF 12 and challenges the board's initial decision to postpone his release. He argues that Templeman's report—the sole stated basis for the board's initial decision—was insufficient to establish that petitioner suffered from a PSED. That is, he contends that BAF 12 is not supported by substantial evidence or substantial reason. According to petitioner, "whether there is substantial evidence in the record to support the board's finding depends entirely upon whether Templeman's evaluation of petitioner permitted it to conclude that he suffered from a present severe emotional disturbance." Petitioner contends that Templeman's evaluation did not permit that conclusion. He argues that, even if the board could conclude that he suffered from an emotional disorder, the record lacks sufficient evidence to establish that the condition was severe or made him a danger to the community. Moreover, petitioner contends that the board offered a "mere conclusion" and failed to explain what in the record permitted that conclusion. Ultimately, without a valid finding of a PSED, petitioner contends that the board, under its own rule, was required to affirm his release date.⁵ Petitioner contends that failure to release him on his scheduled release date violated his right to due process under the Fourteenth Amendment to the United States Constitution.

Alternatively, in assignments two, three, and four, petitioner argues that the board erred by reopening the evidentiary record and...