Hostetter v. Board of Parole & Post-Prison Supervision

296 P.3d 664, 255 Or. App. 328, 2013 WL 636644, 2013 Ore. App. LEXIS 184
CourtCourt of Appeals of Oregon
DecidedFebruary 21, 2013
DocketA144070
StatusPublished
Cited by3 cases

This text of 296 P.3d 664 (Hostetter 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
Hostetter v. Board of Parole & Post-Prison Supervision, 296 P.3d 664, 255 Or. App. 328, 2013 WL 636644, 2013 Ore. App. LEXIS 184 (Or. Ct. App. 2013).

Opinion

SERCOMBE, J.

Petitioner was convicted of murder in 1992 and then released on post-prison supervision (PPS) in 2006. However, in 2008, the Board of Parole and Post-Prison Supervision (the board) revoked petitioner’s PPS after he violated the conditions of his supervision. Petitioner now seeks judicial review of an order of the board denying his request for re-release on PPS and setting a projected release date of January 17, 2015. He asserts that the board erred in imposing an 84-month incarcerative sanction for the violation, arguing that—under the then-applicable rules governing sanctions for PPS violations—the board was not permitted to impose an incarcerative sanction in excess of 90 days.1 We review the board’s order for errors of law, ORS 183.482(8), and, while petitioner acknowledges that the board’s action was permissible under our prior construction of the applicable rules in Jones v. Board of Parole, 231 Or App 256, 260, 218 P3d 904 (2009), rev den, 347 Or 718 (2010), we revisit and overrule that precedent, agree with petitioner, and reverse.

The relevant facts are few and undisputed. As noted, petitioner was convicted of murder in 1992 and, after serving a term of incarceration, was released on PPS in 2006. He then committed a technical violation of the conditions of his supervision involving admitted alcohol use and failure to report to his parole officer, and the board subsequently revoked his PPS on February 11, 2008. After a future disposition hearing, the board concluded that petitioner “could not be adequately controlled in the community,” denied his request for re-release on PPS, and imposed a sanction of 84 months’ incarceration with a projected release date of January 17, 2015.

[331]*331On judicial review, petitioner relies upon former OAR 253-11-004(3) (9/1/89) and former OAR 253-05-004 (9/1/89).2 First, OAR 253-11-004(3) provides:

“If requested to return an offender to a state correctional facility, the Board shall hold a hearing to determine whether prison incarceration is appropriate and may impose an appropriate term of incarceration up to ninety (90) days for a technical violation and up to one hundred and eighty (180) days for conduct constituting a crime. Except as provided in OAR 253-05-004(2), during the full term of post-prison supervision, an offender may not be required to serve more than one hundred and eighty (180) days of incarceration for violations of the conditions of supervision.”

(Emphasis added.) OAR 253-05-004 then provides, in relevant part:

“(1) The term of post-prison' supervision for an offender serving a life sentence [for murder] pursuant to ORS 163.105 or ORS 163.115 shall be for the remainder of the offender’s life, unless the Board finds a shorter term appropriate. * * *
“(2) The limit on sanctions for post-prison supervision violations provided in OAR 253-11-004(3) shall not apply to offenders on post-prison supervision as provided by this rule.”

Thus, OAR 253-11-004(3) both limits reincarceration of an offender for any single PPS violation to 90 or 180 days and places a 180-day cap on aggregate incarcerative sanctions for multiple PPS violations. That rule is then subject to OAR 253-05-004’s above-quoted exception for offenders serving life sentences for murder. At issue is the scope of that exception.

Petitioner “acknowledges that this court held in [Jones] that the 90- and 180-day limitations in OAR 253-11-004(3) do not apply to offenders on lifetime PPS for a murder conviction.” However, he contends that in Jones we “incorrectly interpret [ed] the relevant administrative rules” and specifically argues that the exception pertaining [332]*332to offenders serving life sentences for murder does not apply to the limitation on individual sanctions but rather only to the 180-day aggregate limitation in OAR 253-11-004(3). Accordingly, petitioner contends that Jones “should be overruled.” In support of that contention, he advances a number of interpretive arguments based upon the methodology set forth by the Supreme Court in PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993), and modified in State v. Gaines, 346 Or 160, 171-73, 206 P3d 1042 (2009)—focusing on the text, context, and history of the rules at issue.3 In addition, petitioner points out that his argument regarding the proper construction of OAR 253-11-004(3) and OAR 253-05-004 was not “squarely” presented to this court in Jones. Specifically, petitioner states, “The only argument presented in Jones was that the 90- and 180-day limits applied to the petitioner because he was not serving a life sentence’ and thus did not come within the exemption in OAR 253-05-004(2).” That is, the argument advanced by petitioner in this case—that “the exemption applie[s] only to the 180-day aggregate ‘cap’ and not to the 90- and 180-day limitations”—was not before this court in Jones. Rather, we disposed of that issue only in passing while addressing an entirely different argument.

In Jones, as here, the petitioner had been subjected to a lengthy, multiyear sanction for a PPS violation. 231 Or App at 258-59. The primary issue in Jones was whether the petitioner, sentenced to a determinate number of years of imprisonment followed by a lifetime term of PPS, was “serving a life sentence” under OAR 253-05-004(1) so as to be subject to the exception in subsection (2) of that rule. Id. at 260-62. And, although we directly addressed only the [333]*333meaning of the term “life sentence,” we ultimately affirmed the board’s order notwithstanding the limitations set forth in OAR 253-11-004(3). We did so merely by inserting a bracketed phrase into our quotation of OAIt 253-05-004(2):

“The limit on sanctions for post-prison supervision provided in OAR 253-11-004(3) [that is, the 90- and 180-day limitations] shall not apply to offenders on post-prison supervision as provided by this rule.”

Id. at 260 (internal quotation marks omitted; brackets in Jones', emphasis added). Thus, our insertion of the bracketed phrase, “that is, the 90- and 180-day limitations,” provides the only indication that we construed the rules at issue at all in Jones—offering no explanation for that construction.

Nevertheless, that construction was necessary to our decision in Jones, see State ex rel Huddleston v. Sawyer, 324 Or 597, 621 n 19, 932 P2d 1145 (1997) (a statement is not dictum if it was “necessary to the outcome of the case”), and, however framed, “we do not lightly overrule our own statutory interpretations. Ordinarily, we regard them as binding precedent unless they are plainly wrong.” Aguilar v. Washington County, 201 Or App 640, 648, 120 P3d 514 (2005), rev den, 340 Or 34 (2006); accord, e.g., State v. Kittel, 203 Or App 736, 740, 127 P3d 1204 (2006).

Notwithstanding the established principles and strong policies in favor of stare decisis,

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Bluebook (online)
296 P.3d 664, 255 Or. App. 328, 2013 WL 636644, 2013 Ore. App. LEXIS 184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hostetter-v-board-of-parole-post-prison-supervision-orctapp-2013.