Atkinson v. Board of Parole & Post-Prison Supervision

382 P.3d 567, 280 Or. App. 410, 2016 Ore. App. LEXIS 1013, 2016 WL 4537618
CourtCourt of Appeals of Oregon
DecidedAugust 31, 2016
DocketA152750
StatusPublished
Cited by2 cases

This text of 382 P.3d 567 (Atkinson v. Board 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
Atkinson v. Board of Parole & Post-Prison Supervision, 382 P.3d 567, 280 Or. App. 410, 2016 Ore. App. LEXIS 1013, 2016 WL 4537618 (Or. Ct. App. 2016).

Opinion

ARMSTRONG, P. J.

Petitioner, who was convicted in 1985 of aggravated murder and other crimes, seeks judicial review of an order of the Board of Parole and Post Prison Supervision that set his matrix range at 228 to 288 months and established a projected parole release date of June 28, 2013. He contends that the board erred in holding a “second prison term hearing” and in imposing “a different matrix range and prison term than it did after the first prison term hearing based on the same information.” He further contends that the use of a three-member board to decide those issues violated the ex post facto protections of the state and federal constitutions.1 The board responds that the case is moot2 and, in any event, that it did not err in the manner asserted by petitioner. Because we agree with the board that the issues raised by petitioner are moot, we dismiss the petition and do not reach the merits of petitioner’s arguments.

We begin with a brief overview of the case for context; additional factual details, pertinent to the question of mootness, are provided in our analysis of that issue.

Petitioner was convicted in 1985 of aggravated murder, robbery in the first degree, and felon in possession of a firearm, which the board later identified as petitioner’s “group 1” crimes.3 For the aggravated murder conviction, he received a life sentence under ORS 163.105(2) (1983) with a mandatory minimum of 20 years’ imprisonment. On July 3, 1985, the board held a prison-term hearing and, as reflected [413]*413in its Board Action Form (BAF) of that date, set petitioner’s matrix range at 258 to 328 months and his prison term at 264 months. The BAF also established a “release date of 6/28/2006.”4 Petitioner was subsequently convicted of additional crimes while incarcerated; the board refers to those crimes as petitioner’s “group 2” crimes.

In 2008, the board found that petitioner had met his burden of proving that he was likely to be rehabilitated within a reasonable period of time and, under ORS 163.105(4) (1983),5 converted petitioner’s aggravated murder sentence to life with the possibility of parole.6 Then, on September 7, 2011, after the Supreme Court decided Janowski/Fleming v. Board of Parole, 349 Or 432, 245 P3d 1270 (2010),7 the board held another prison-term hearing for petitioner and determined, in BAF #15, that his matrix range was 228 to 288 months. The board found as an aggravating factor “[r]epetition of behavior pattern which contributes to criminal conduct, return to drug abuse,” and set petitioner’s prison term at the top of the matrix — that is, 288 months in prison. The board also noted that petitioner “has a consecutive 60 month prison term to serve on the group #2 offenses, which will begin on 06/28/2008.” The board set [414]*414a projected parole-release date of June 28, 2013, “following a total of 348 months (this includes the prison term on the group #1 and #2 offenses).” That order is the subject of petitioner’s challenge in the present case.

As he did before the board, petitioner on review contends that the board erred in holding a second prison-term hearing, imposing a different matrix range and prison term than it did at the initial prison-term hearing, and making those determinations with a three-person board.8

The board contends that petitioner’s challenge is moot because, even if the board erred in holding the 2011 “JanowskHFleming hearing” and setting a new prison term and parole-release date for petitioner, a decision on those issues would have no practical effect on petitioner’s rights. See Brumnett v. PSRB, 315 Or 402, 406, 848 P2d 1194 (1993) (court will dismiss appeal as moot where there is no longer a controversy and a decision from the court would, thus, “no longer * * * have a practical effect on or concerning the rights of the parties”). The board points out that, in 2012, and again in 2014, the board held exit interviews for petitioner and, in each instance, found that petitioner suffered from a present severe emotional disturbance that constituted a danger to the health or safety of the community and, therefore, deferred petitioner’s parole-release date for two years. See ORS 144.125(1) (1983) (providing for an interview “[p]rior to the scheduled release of any prisoner on parole”); ORS 144.125(3) (1983) (allowing board to postpone a scheduled release date “ [i] f 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”). Thus, the board asserts, “even if the board ‘reinstated’ the original prison term, petitioner has already received the only relief to which he would be entitled at the expiration of that term, i.e., an exit interview.” In the board’s view, the issue is controlled by our decisions in Rivas v. Persson, 256 Or App 829, 304 P3d 765 (2013), and Miller v. Board of Parole, 261 Or App 795, 323 P3d 980 (2014). Accordingly, we begin there.

[415]*415In Rivas, the plaintiff, who was serving a sentence for aggravated murder for which he was arrested in 1987, appealed the denial of his petition for a writ of habeas corpus. The plaintiff sought the writ in 2011 on the ground that the board had not fully credited him for time served following his arrest, as was provided in the 1992 plea agreement leading to his conviction and sentence for aggravated murder. 256 Or App at 830-31.

Meanwhile, in 2010, the board had found that the plaintiff was likely to be rehabilitated within a reasonable period of time and converted his sentence — life without the possibility of parole for a minimum of 30 years — to life with the possibility of parole. Id. at 831. The board set a prison term according to the sentencing matrix in effect when the plaintiff committed his crime and established a projected parole-release date of June 3, 2012. Id. If the board had credited the plaintiff with all of the days that he had been incarcerated between his arrest and conviction, the projected release date would have been approximately October 8, 2010. Id.

The defendant moved to dismiss the plaintiffs appeal as moot, arguing that, even if the plaintiff were correct as to the calculation of his credit for time served, the most to which he was entitled if he prevailed on judicial review on that point was a remand requiring the board to hold an exit interview, which had already been held and at which the board had postponed his projected release date by two years based on its finding that the plaintiff had a present severe emotional disturbance constituting a danger to the health or safety of the community. Id. at 833. In response, the plaintiff, citing Hamel v. Johnson, 330 Or 180, 998 P2d 661 (2000), argued that the case was not moot, because the board had authority to postpone his release date only if it had held the exit interview before

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Related

Wille v. Board of Parole & Post-Prision Supervision
404 P.3d 1042 (Court of Appeals of Oregon, 2017)
Porter v. Board of Parole & Post-Prison Supervision
383 P.3d 427 (Court of Appeals of Oregon, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
382 P.3d 567, 280 Or. App. 410, 2016 Ore. App. LEXIS 1013, 2016 WL 4537618, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atkinson-v-board-of-parole-post-prison-supervision-orctapp-2016.