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

294 Or.App. 497

432 P.3d 372

Rufus L. WASHINGTON, Petitioner,

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

A163797

Court of Appeals of Oregon.

Argued and submitted June 7, 2018.

October 17, 2018

Laura A. Frikert, Deputy Public Defender, argued the cause for petitioner. Also on the brief was Ernest Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Christopher A. Perdue, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Christopher Page, Assistant Attorney General.

Before Lagesen, Presiding Judge, and James, Judge, and Schuman, Senior Judge.

SCHUMAN, S. J.

Petitioner shot and killed a man in 1988 and was charged with aggravated murder, murder, and robbery. Pursuant to an agreement, he pleaded guilty to murder, all of the other charges were dismissed, and he was sentenced to imprisonment for life with the possibility of parole. At that time, the Board of Parole and Post-Prison Supervision (board) set an initial proposed release date of 2009, following the recommendation of the sentencing court that petitioner serve a minimum of 20 years’ incarceration. Since 2009, petitioner has appeared before the board four times to apply for release, each time without success. Petitioner now seeks judicial review of the most recent order deferring his release, contending that neither substantial evidence nor substantial reason support the board’s decision. We reverse and remand.

The board’s authority to defer an inmate’s release depends on the law in effect when the crime of conviction occurred. Edwards v. Board of Parole , 272 Or. App. 183, 184 n. 1, 355 P.3d 166, rev. den. , 358 Or. 70, 363 P.3d 501 (2015). The relevant law at the time of petitioner’s crime (May 29, 1988) was OAR 255-60-006, a 1988 version of the board’s administrative rule interpreting the then-existing version of ORS 144.125(3). Peek v. Thompson , 160 Or. App. 260, 262, 980 P.2d 178, rev. dismissed , 329 Or. 553, 994 P.2d 130 (1999). That rule provided:

"(7) The Board may order a psychiatric/psychological report anytime prior to release. If the record indicates that a psychiatric or psychological condition of severe emotional disturbance, such as to constitute a danger to the health or safety of the community, is present, the Board may consider deferring parole release until a specified future date.

"(8) If the evaluation does not make a finding of 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."

OAR 255-60-006 (1988). As construed, the rule encompassed several requirements limiting the board’s discretion. First, the board had to obtain a psychiatric or psychological evaluation of the inmate that included a diagnosis that the inmate had a mental disorder. Edwards , 272 Or. App. at 189, 355 P.3d 166 ; Peek , 160 Or. App. at 262, 980 P.2d 178. Second, the board had to independently evaluate the material contained in the psychological examination and reach its own legal (as opposed to medical) determination that the inmate’s disorder was "(a) present, (b) severe, and (c) one that made the prisoner a ‘danger to the health and safety of the community,’ " although the board did not need to use any particular verbal formulation to express that conclusion. Weidner v. Armenakis , 154 Or. App. 12, 17-18, 959 P.2d 623 (1998). Third, the board’s independent determination had to be based on only the psychiatric or psychological evaluation and not on other information, for example, the inmate’s criminal history, parole plan, institutional history, or exit interview. Peek , 160 Or. App. at 265-66, 980 P.2d 178.¹

The board’s order, in turn, is subject to judicial review for substantial evidence and substantial reason. Jenkins v. Board of Parole , 356 Or. 186, 205, 335 P.3d 828 (2014) ; Martin v. Board of Parole , 327 Or. 147, 157, 957 P.2d 1210 (1998). "Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding." ORS 183.482 (8)(c). In exercising substantial evidence review, we may not reweigh or assess the credibility of the evidence. Murphy v. Board of Parole , 241 Or. App. 177, 184, 250 P.3d 13, rev. den. , 350 Or. 571, 258 P.3d 526 (2011). The "substantial reason" standard requires the board to provide an explanation connecting the adequately supported facts to the inference it draws from them. Jenkins , 356 Or. at 196, 335 P.3d 828 (citing City of Roseburg v. Roseburg City Firefighters , 292 Or. 266, 271-72, 639 P.2d 90 (1981) ). The board’s burden is cumulative. For example, failure to adequately establish that the disorder is present renders the entire order erroneous. See Christenson v. Thompson , 176 Or. App. 54, 59-60, 31 P.3d 449 (2001).

The issue in this case, then, is: Does the board’s order contain a logical explanation of the connection between adequately supported facts and the board’s conclusion that petitioner has a psychological condition that is present, severe, and makes him a danger to the health or safety of the community?

Petitioner does not dispute any of the historical facts in the psychological report prepared by the board-appointed psychologist, McGuffin,² who based his report on an interview with petitioner and three psychological tests: the Shipley-2, which measures cognitive functioning and impairment; the Minnesota Multiphasic Personality Inventory-2 (MMPI-2), a test that, according to McGuffin, "is basically actuarial and probabilistic in nature in that the symptoms and personality characteristics presented * * * have been identified as disproportionally frequent among individuals obtaining similar scores and patterns of scores";³ and an HCR-20 test, "a blended clinical risk assessment instrument."

McGuffin’s "interview findings" consist entirely of a factual account of petitioner’s family background and other biographical information, including the facts of the crime of conviction.⁴

The Shipley-2 results indicate cognitive function that, by one measure, is possibly impaired, and by another measure, is within normal limits. "Given his scores and if motivated, [petitioner] could benefit from therapy" and is "capable of understanding and internalizing most * * * content if presented in a workbook fashion." Petitioner’s MMPI-2 results, as analyzed by McGuffin, "suggest a pattern that tends to overly minimize problems, possibly in an effort to present in a positive image, * * * indicate emotional instability concerning hysterical control and emotional alienation, and impulsive behavior," and are similar to individuals who are

"quite sensitive to rejections and will respond with anger; in spite of an underlying anger towards authority figures, they tend to be rule conscious and will use charm [to] get what they want. They may feel trapped, bitter, resentful, and defeated which tends to bring on impulsive and self-defeating behaviors and addictions. Angry outbursts come as a buildup of internal pressure. Once anger is expressed, these individuals can return to periods of socially appropriate and controlled behavior; the outburst tends to be rationalized and even denied."

The HCR-20 test, which measures the likelihood of violent behavior and recidivism, assessed petitioner in the "Moderate category relative to the likelihood of violent recidivism." This result combined three components. On the risk management component, he scored "Low to Moderate."

Based on the interview and tests, McGuffin diagnosed petitioner as presently having "other specified personality disorder with mixed personality features including antisocial, narcissistic, and histrionic traits, considered moderate." He elaborated:

"Of concern is [petitioner’s] capacity to cope effectively and in a pro-social manner when overwhelmed by deep-seated issues that could render him to exhibit poor judgment; therefore become difficult to supervise in the community. Although [petitioner] has made strides in his prosocial attitudes and behaviors, he is seen as an improbable candidate to be successfully supervised if returned to the community. He is seen as having an emotional disturbance predisposing him to the commission of any crime to a degree rendering him a danger to the health or safety of others."

Relying "solely on the psychological evaluation," the board concluded in Board Action Form (BAF) #12:

"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."

Petitioner sought administrative review. In an Administrative Review Response (ARR), the board rejected his claim, summarizing the psychological evaluation as follows:

"Dr. McGuffin expressed concern over the fact that you appear to experience a considerable degree of anger and rebelliousness and struggle to find ways to control or discharge it. He notes that you tend to externalize blame to others, and that you have difficulty having compassion for others and their points of view. He found that you are likely to continue to exhibit poor judgment, and believes you would be difficult to supervise in the community. Dr. McGuffin diagnosed you with Other Specified Personality Disorder with Mixed Personality Features including Antisocial, Narcissistic, and Histrionic Traits, considered moderate and noted that you suffer from an emotional disturbance that predisposes you to commission of any crime to a degree that make[s] you a danger to the health or safety of others."

Having exhausted his administrative remedies, petit...