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

446 P.3d 79, 298 Or. App. 14
CourtCourt of Appeals of Oregon
DecidedJune 12, 2019
DocketA162149
StatusPublished
Cited by2 cases

This text of 446 P.3d 79 (Aikens v. Bd. of Parole & Post-Prison Supervision) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aikens v. Bd. of Parole & Post-Prison Supervision, 446 P.3d 79, 298 Or. App. 14 (Or. Ct. App. 2019).

Opinion

EGAN, C. J.

*15Petitioner is serving a life sentence for one count of aggravated murder. ORS 163.105 (1987).1 In 2015, petitioner sought, for the third time, to convert the terms of his confinement to life imprisonment with the possibility of parole. After conducting a murder review hearing, the Board of Parole and Post-Prison Supervision (board) concluded that petitioner had failed to carry his burden of proving that he was likely to be rehabilitated in a reasonable period of time and, accordingly, declined to convert his aggravated murder sentence. ORS 163.105(2). Petitioner contends that the board's final order is not supported by substantial evidence or substantial reason and that the board thereby violated his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution. In our review under ORS 183.482(8)(c), we agree with petitioner that the board's order is based in part on a finding that is not supported by substantial evidence. Specifically, there is no evidence in the record to support the board's finding that petitioner's good behavior in prison was "eerily similar" to the behavior that led to his involvement in a brutal murder. We therefore remand for the board to reconsider its decision without relying on that erroneous factual finding.

In 1987, petitioner, a man named Montez, and the victim went to a motel room in Portland. After the three used drugs, Montez attacked the victim, and petitioner helped to subdue her by punching her in the face. Montez raped and brutally sodomized the victim. After the rape, petitioner assisted Montez in binding and gagging the victim, dragging her into the bathroom, and strangling her to death. Then, the two moved the victim's body to the bed, piled her personal belongings and the room's furniture on top of her, and set everything on fire. Petitioner and Montez fled out of state, but petitioner was arrested two months later and eventually convicted of one count each of aggravated murder, first-degree arson, and abuse of a corpse. For the count of aggravated murder, the trial court sentenced petitioner *16to life imprisonment with a 30-year minimum term without the possibility of parole.2 *81In 2015, the board held a murder review hearing, at petitioner's request, regarding petitioner's aggravated murder sentence. The sole issue was whether petitioner was likely to be rehabilitated within a reasonable time. ORS 163.105(2).3 The board considered each of the 10 factors in OAR 255-032-0020, the rule outlining criteria the board may use to determine whether a petitioner is likely to be rehabilitated. The board determined that some factors were neutral or weighed in petitioner's favor. However, the board concluded that several factors weighed so heavily against petitioner that he failed to carry his overall burden of proof. The board focused "in particular" on the factor in subsection (4) of OAR 255-032-0020 : petitioner's "maturity, stability, demonstrated responsibility, and any apparent development in the inmate personality which may promote or hinder conformity to law." The board also relied on petitioner's prior criminal history, his conduct during periods of probation or parole, his parole plan, and the likelihood that he would not conform to the conditions of parole.

In its final order, the board explained its factual findings and reasoning for why it concluded that petitioner failed to meet his overall burden of proving that he was likely to be rehabilitated within a reasonable period of time. With regard to petitioner's lack of maturity, stability, and demonstrated responsibility, the board explained that, in his testimony,

"[petitioner] intentionally left out detail to spare himself the humility of admitting that he had been involved in such a brutal and torturous act. [Petitioner] portrayed himself as the less culpable perpetrator. *** While [petitioner]
*17may not be as culpable as his co-defendant [sic ], the factual record clearly establishes that [petitioner] was not a passive participant in this crime, and his minimization of his role in the murder at his latest hearing raises concern about how he has matured in the institution."

The board found that petitioner's omissions demonstrated a "lack of effort" to adequately address the personality characteristics that led him to commit his crime. Additionally, the board saw "no progress" in the qualities petitioner attributed his criminality to, namely, his desire to please others and his tendency to be a follower. The board found that petitioner "appeared to have spent his incarceration period focusing on his own perceived victimization and not the nature of his violence." For example, when the board asked why petitioner did not help the victim and instead assisted Montez, petitioner told the board he "just wanted to fit in."

The board found that while petitioner had letters of support stating that he is "trustworthy and extremely helpful, exhibits a willingness to do whatever is assigned to him, and works hard regardless of the task," those letters actually worked against petitioner. The board explained:

"Letter[s] of support for [petitioner] consistently note that [petitioner] is trustworthy and extremely helpful, exhibits a willingness to do whatever is assigned to him, and works hard regardless of the task. While the Board may view these types of recommendations favorably in most cases, in the case of [petitioner], this behavior is eerily similar to the [sic ] his stated lack of ability or willingness to assert himself when faced with moral challenges and remains consistent with his overwhelming desire to want to 'fit in.' "

As to petitioner's previous felony convictions, the board explained that petitioner "minimized" his conduct underlying those convictions, "disassociated himself from his abusive behavior," and concluded that he was "in denial about the extent of his misogynistic impulses and behavior." The board noted that petitioner was on probation when he committed the offense for which he is serving a life sentence and concluded that that factor weighed against him. The board also described petitioner's parole plan as "naïve *82*18regarding life on the outside," and noted that while petitioner had some support system, "the [b]oard viewed his failure to disclose the extent of his crime as resulting in relatively superficial relationships." Lastly, the board concluded that there was "no reasonable probability" that petitioner would remain in the community without violating the law or conditions of parole.

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Related

State v. Shepherd
346 Or. App. 242 (Court of Appeals of Oregon, 2025)
Aikens v. Board of Parole
328 Or. App. 432 (Court of Appeals of Oregon, 2023)
Aikens v. Bd. of Parole & Post-Prison Supervision
443 P.3d 748 (Court of Appeals of Oregon, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
446 P.3d 79, 298 Or. App. 14, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aikens-v-bd-of-parole-post-prison-supervision-orctapp-2019.