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

281 Or.App. 237

383 P.3d 427

Sidney Dean Porter, Petitioner,

v.Board of Parole and Post–Prison Supervision, Respondent.

A156728

A158316

Court of Appeals of Oregon.

Argued and submitted June 21, 2016.

September 21, 2016

Andy Simrin argued the cause for petitioner. With him on the briefs was Andy Simrin PC.

Jeff J. Payne, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

Before Duncan, Presiding Judge, and DeVore, Judge, and Flynn, Judge.

DEVORE, J.

Petitioner killed a John Day police officer and later pleaded guilty to aggravated murder. ORS 163.095(2)(a)(A) (1991) (murder victim was police officer).¹ In this parole review case, petitioner challenges the orders of the Board of Parole and Post–Prison Supervision that rescinded his scheduled release date from prison and that, after the release date had passed, reconvened a hearing to extend the release date. Petitioner makes three assignments of error. He asserts that (1) the board erred in rescinding the release date, (2) the board erred in postponing the release date, and (3) the board erred in “reconvening” an exit interview after his release date had passed. We review the board's determinations for legal error, McClure v. Board of Parole , 236 Or.App. 606, 609, 237 P.3d 879 (2010), rev. den. , 350 Or. 241, 254 P.3d 743 (2011), and we reverse and remand.

In the early morning hours of April 8, 1992, Officer Ward arrived at petitioner's home on a domestic violence call. Petitioner had been drinking and had assaulted his wife. When Ward tried to intervene, petitioner attacked him. Petitioner bludgeoned Ward with his fists and a 10–pound piece of firewood. At some point, petitioner took and discarded Ward's gun outside the house. When other officers arrived, they found petitioner with blood on his hands and clothes. Ward was incapacitated, and, despite medical efforts to save him, he died soon thereafter.² In 1994, petitioner pleaded guilty to aggravated murder.³ ORS 163.095(2)(a)(A).

At the time that petitioner was sentenced, ORS 163.105(1)(c) (1991) required the court to impose a life sentence with a 30–year minimum period of incarceration.⁴

However, the board was required, after 20 years and upon a prisoner's petition, to “hold a hearing to determine if the prisoner is likely to be rehabilitated within a reasonable period of time.” ORS 163.105(2) (1991) ; see also Janowski/Fleming v. Board of Parole , 349 Or. 432, 441–42, 245 P.3d 1270 (2010). Petitioner submitted a petition, and, in July 2012, the board held a rehabilitation hearing. In an order known as a Board Action Form (BAF), dated July 18, 2012 (BAF #2), the board determined that petitioner had “satisfied the burden of proof * * * and therefore * * * is likely to be rehabilitated within a reasonable period of time and that the terms of confinement for the aggravated murder conviction should be changed to life imprisonment with the possibility of parole or work release.” The board's order in July 2012 converted petitioner's aggravated murder sentence to life with the possibility of parole.

In November 2012, the board held a prison-term hearing. SeeORS 144.120(1)(a) (1991). The board calculated petitioner's term of incarceration “under the matrix rules in effect at the time of his offense.” See Gordon v. Board of Parole , 343 Or. 618, 622–23, 175 P.3d 461 (2007) (explaining matrix system as sentencing scheme adopted by the legislature in 1977). In its BAF #3, the board set a “projected parole release date” of June 7, 2013, following a period of incarceration of 254 months. In contemplation of that release date, the board required that petitioner complete a psychological evaluation and participate in an exit interview with the board. See ORS 144.223 (psychological examination of parole candidate).

On February 13, 2013, the board held the exit interview, as allowed by ORS 144.125 (1991).⁵ The board observed that petitioner's psychological evaluation included a diagnosis of antisocial personality disorder and alcohol dependence in remission.⁶ After considering the evidence, the board affirmed petitioner's release date of June 7, 2013. Its order, BAF #4, stated, in part:

“Based on the doctor's report and diagnosis, coupled with all the information that the Board is considering, the Board concludes that the inmate does have an emotional disturbance; however, the emotional disturbance is not presently so severe as to constitute a danger to the health and safety of the community. The Board has considered this matter under the substantive standard in effect at the time of the commitment offense(s) and all other applicable rules and laws.”

On June 4, 2013, a few days before petitioner's planned release, the board issued an order that “rescind[ed] the parole release date” and “reopen[ed]” its prior decision.⁷ The board's BAF #5 stated that the board “on its own motion, rescinds the parole release date of June 7, 2013, and pursuant to its authority in OAR 255–080–0012(2),⁸ reopens Board Action Form (BAF) #4 for reconsideration. A new psychological evaluation will be obtained and the exit interview hearing will be reconvened * * *.” The order was corrected in BAF #6. As a consequence, petitioner was not released on June 7, 2013.

On September 30, 2013, the board conducted a new exit interview and issued an order (BAF #7), in which the board reaffirmed its decision to rescind petitioner's release date.⁹ Contrary to its prior finding in BAF #4, the board found that petitioner “suffers from a present severe emotional disturbance such as to constitute a danger to the health or safety of the community.” The board extended petitioner's release date 24 months.

Petitioner sought administrative review of the board's decisions. On review, the board determined that it had authority under OAR 255–080–0012(2) to reopen the case for reconsideration and under OAR 255–080–0012(3)(c) to schedule a reopened hearing.¹⁰ In response to petitioner's due process argument, the board concluded that it had provided adequate process by reconvening a hearing so that he could “present information and [respond] to the information submitted by others.” The board explained in its second administrative review response that in reaching its new determination that petitioner had a present severe emotional disturbance, the board had considered and relied upon, at least in part, documents submitted after petitioner's February exit interview, including “the DA submission of documents showing a history of assault on [petitioner's] ex-wife.” The board noted that it had “received and reviewed a large amount of significant information” and that it had relied on that “new information that was received.”

Petitioner now seeks judicial review, contending, generally, that he was entitled to a hearing before the board rescinded his release date, or, in absence of that hearing, that he was entitled to be released under the earlier order. Making three arguments, he asks that the board's orders be reversed and remanded with instructions to reinstate the order affirming his release date. First, he contends that, by reopening the process and rescinding his release date, the board violated OAR 225–080–0012 and OAR 255–060–0006(1). Second, he contends that the board's action violated ORS 144.125 (1991) because the board did not postpone his release date for a permissible reason under that statute. Third, he contends that the board violated his constitutional rights to due process under the Fourteenth Amendment to the United States Constitution by depriving him of a liberty interest—that is, his scheduled release date.

We begin by describing the statutory scheme applicable to this case. At ORS 144.245(1) (1991), Oregon statute requires that, “when the parole board ‘has set a date on which a prisoner is to be released upon parole, the prisoner shall be released on that date unless the prisoner on that date remains subject to an unexpired minimum term.’ ” Engweiler v. Persson/Dept. of Corrections , 354 Or. 549, 563, 316 P.3d 264 (2013) (quoting ORS 144.245(1) ). Release is not guaranteed to an inmate under that statutory provision, because, under ORS 144.125 (1991), “[p]rior to the scheduled release of any prisoner on parole * * * the board may * * * 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.” That review process “exists to ensure that offenders are not released to parole unless and until the board is satisfied that their release is consistent with community safety.” Engweiler , 354 Or. at 567, 316 P.3d 264.

The board's review process, however, is bound by statutory limitations. The Supreme Court has explained:

“Once a [release] date is set, it can be postponed only for three statutorily prescribed reasons . First, under ORS 144.125(2) (1985), the board must postpone a prisoner's release date if it finds that the prisoner had engaged in serious misconduct during confinement. The board also is permitted, but not required, to postpone a release date if the prisoner received a psychiatric or psychological diagnosis of a severe emotional disturbance that would make him a danger to the community, ORS 144.125(3) (1985), or if it deems the prisoner's release plan to be inadequate, ORS 144.125(4) (1985).”

Janowski/Fleming , 349 Or. at 457, 245 P.3d 1270 (emphasis added); see also Stogsdill v. Board of Parole , 342 Or. 332, 336, 154 P.3d 91 (2007) (petitioner “entitled to be released unless the board is persuaded that he has a present severe emotional disturbance that constitutes a danger to the health or safety of the community”). Therefore, “[i]n the absence of one of those [three] grounds for postponement, the inmate has a legal right to release on the scheduled release date.”

Gordon , 343 Or. at 622, 175 P.3d 461 (citing ORS...