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

261 Or.App. 795

323 P.3d 980

Douglas Ray MILLER, Petitioner,

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

No. A152773.

Court of Appeals of Oregon.

Submitted Oct. 4, 2013.

Decided March 26, 2014.

Douglas R. Miller filed the briefs pro se.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jeremy C. Rice, Assistant Attorney General, filed the brief for respondent.

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

EGAN, J.

Petitioner seeks judicial review of an order of the Board of Parole and Post–Prison Supervision (board) that assigned him a projected parole-release date of March 11, 2012. He contends that the board lacked the authority to recalculate his previously assigned “matrix” prison term and that the board improperly set his projected parole-release date for a time that was approximately six months later than it should have been. For the following reasons, we dismiss the petition.

Petitioner was tried and convicted of aggravated murder. In September 1982, he was sentenced to a minimum of 30 years in prison without the possibility of parole pursuant to ORS 163.105(1) (1981), which prescribed that sentence for certain types of aggravated murder. Shortly after petitioner's sentence began to run, the board issued a board action form (BAF) providing that petitioner's matrix range was 120 to 168 months.¹ In 1988, the board set a parole-release date for petitioner of February 1, 2012. In 1990, the board rescinded that release date, explaining that it did not have the authority to set parole-release dates for prisoners serving aggravated-murder sentences unless the prisoner had been found likely to be rehabilitated within a reasonable period of time. At the time of petitioner's sentencing, a prisoner serving time for aggravated murder—as defined in ORS 163.095( l )—could, after 20 years of incarceration, petition the board to find that the prisoner was “likely to be rehabilitated within a reasonable period of time.” ORS 163.105(3) (1981). If the board made such a finding, ORS 163.105(4) (1981) directed the board to “convert the terms of the prisoner's confinement” to life in prison with the possibility of parole.

In 2008, the board found that petitioner was likely to be rehabilitated within a reasonable time. Accordingly, the board converted petitioner's sentence to life in prison with the possibility of parole. As to a projected release date, the board apparently took the position that it could not parole a prisoner serving an aggravated murder sentence before that prisoner had served the 30–year minimum prescribed by ORS 163.105(1) (1981), regardless of a board finding that the prisoner was likely to be rehabilitated. Accordingly, the board set a “projected parole release date” of March 11, 2012, the date that also marked the end of petitioner's 30–year minimum sentence.

In 2010, the Oregon Supreme Court addressed the issue of parole in the context of an aggravated-murder sentence in Janowski/Fleming v. Board of Parole, 349 Or. 432, 245 P.3d 1270 (2010). In that case, the board argued that it lacked the authority to grant parole to a prisoner incarcerated for aggravated murder before the 30–year minimum term announced by ORS 163.105(1) (1985) had run. The court concluded otherwise, stating that ORS 163.105 (1985) “gave the board the authority to override the 30–year mandatory minimum sentence for aggravated murder, and to consider releasing a prisoner on parole after 20 years, upon a finding that the prisoner is likely to be rehabilitated within a reasonable time.” Janowski, 349 Or. at 446, 245 P.3d 1270.

Several months after Janowski was announced, the board informed petitioner—then in his 29th year of confinement—that it would hold a hearing for the purpose of determining petitioner's “prison term under the matrix system.” That hearing took place in July 2011. At that hearing, the board told petitioner that it would calculate petitioner's matrix score according to the laws in effect at the time of his crime. The board then determined that petitioner's matrix term was 276 months, a term that was 108 months longer than the high end of the matrix range that the board had assigned petitioner in 1982. That disparity arose because the board applied aggravating factors that it had not applied in 1982. Under either calculation, petitioner's matrix prison term had expired at the time of the July 2011 hearing.

Following the July 2011 hearing, the board issued a BAF that adhered to the March 11, 2012, parole-release date, which, again, had been in place since 2008. The board stated that it had “selected that date in order to allow time for scheduling an exit interview, which we expect to be held on 9/21/2011, with a current psychological evaluation as authorized by ORS 144.223.” Petitioner filed a request for administrative review of that BAF, contending, among other things, that the board had erred both by overriding his 1982 matrix range at the 2011 hearing and by adhering to the March 11, 2012, parole-release date that had been in place since 2008. The board denied relief by order, and this timely petition for judicial review followed.

After petitioner filed the petition for judicial review, the board moved for summary affirmance, contending that the petition did not present a substantial question of law; the Appellate Commissioner denied that motion, and the board moved for reconsideration of that denial. In its motion for reconsideration, the board also moved to dismiss the petition as moot. The board did so because, at a September 2011 release hearing, the board had postponed petitioner's March 11, 2012, release date to March 11, 2014.² In response, petitioner confirmed that the board had postponed the March 2012 release date under ORS 144.125(3) (1981), which provides that the board may postpone a release date upon finding that a “psychiatric or psychological diagnosis reveals a present severe emotional disturbance such as to constitute a danger to the health or safety of the community.” Nonetheless, petitioner contended that the petition was not moot. On that point, he argued that, because his matrix term had expired, the board should have set his release date for a point immediately after the September 2011 release hearing rather than adhere to the March 2012 release date, i.e., approximately six months earlier. Petitioner asserted that the putative error in setting the March 2012 release date would carry forward to each of his subsequently assigned release dates—resulting in an eventual release that is six months later than it should be—and that his petition was thus not moot. The Chief Judge denied the motion for reconsideration and the motion to dismiss.

Petitioner contends that the board order was in error because it both (1) calculated a new matrix term for petitioner and (2) reassigned the March 11, 2012, release date that the board first imposed in 2008. He cites Janowski, along with various statutes and administrative rules, for the proposition that the board lacked the authority to do either of those things.

We begin by concluding that we cannot address petitioner's contention regarding the recalculation of his matrix term. “A court's decision on a matter must have some practical effect on the rights of the parties to the controversy.” Hamel v. Johnson, 330 Or. 180, 184, 998 P.2d 661 (2000). “Appellate courts are prohibited from deciding abstract, hypothetical, or contingent questions.” Id. Regardless of which matrix calculation applied—the 1982 matrix range or the 2011 matrix term—petitioner's prison term under the matrix had passed by the time of the July 2011 hearing. As we explain in more detail below, a petitioner with an expired matrix term is not entitled to an immediate release from prison; instead, the board is entitled to hold a release hearing at some point before the scheduled release date, whenever that date happens to be. See Janowski, 349 Or. at 458–59, 245 P.3d 1270. Petitioner does not challenge the scheduling of the 2011 release hearing. Thus, even if we were to conclude that petitioner is correct that the board lacked the authority to recalculate petitioner's original matrix score at the 2011 hearing, that conclusion would have no “practical effect on the rights of the parties,” for the board was entitled, in any event, to both conduct the release hearing and to postpone petitioner's release date upon making certain findings pursuant to that hearing. Accordingly, we do not address whether the board could—or did—appropriately adjust petitioner's matrix calculation at the 2011 hearing.³Accord Rivas v. Persson, 256 Or.App. 829, 836–37, 304 P.3d 765 (2013) (“[O]nce the matrix release date has passed, credit for time served no longer has any bearing on when the inmate will be released. Instead, that ultimate release date is determined exclusively through the parole consideration process.”).

We next turn to petitioner's contention that the board erred by adhering to the March 11, 2012, parole-release date instead of assigning a parole-release date that was approximately six months earlier, that is, a release date that immediately followed the September 2011 release hearing. We begin by outlining some of the pertinent laws. ORS 144.125 (1981) provides:

“(1) Prior to the scheduled release of any prisoner on parole or on temporary leave in accordance with ORS 421.165(2)(b) [ (1981) ] and prior to release rescheduled under this section, the board may upon request of the Corrections Division or on its own initiative interview the prisoner to review the prisoner's parole plan and psychiatric or psychological report, if any, and the record of the prisoner's conduct during confinement. * * *

“(2) The board shall postpone a prisoner's scheduled release date if it finds, after a hearing, that the prisoner engaged in serious misconduct during confinement. * * *

“(3) If a psychiatric or psychological diagnosis of...