Mendacino v. Board of Parole & Post-Prison Supervision

404 P.3d 1048, 287 Or. App. 822, 2017 WL 4159277, 2017 Ore. App. LEXIS 1087
CourtCourt of Appeals of Oregon
DecidedSeptember 20, 2017
DocketA156752
StatusPublished
Cited by12 cases

This text of 404 P.3d 1048 (Mendacino 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
Mendacino v. Board of Parole & Post-Prison Supervision, 404 P.3d 1048, 287 Or. App. 822, 2017 WL 4159277, 2017 Ore. App. LEXIS 1087 (Or. Ct. App. 2017).

Opinion

DEHOOG, J.

Petitioner, an inmate serving a life sentence for murder, seeks review of a 2013 final order issued by the Board of Parole and Post-Prison Supervision (the board). In its order, the board postponed petitioner’s parole release date for 10 years after finding that he suffered from a “present severe emotional disturbance such as to constitute a danger to the health or safety of the community,” ORS 144.125(3)(a), and that it was “not reasonable to expect that [petitioner] would be granted parole” before 2023, the new date set by the board, ORS 144.280 (l)(b). Petitioner raises two assignments of error. First, he argues that substantial evidence does not support the board’s order. Second, he contends that, because the board acted pursuant to statutes enacted after he committed his crime of conviction, the board’s decision to postpone his parole for 10 years violated the state and federal constitutional prohibitions against ex post facto laws. We review the board’s conclusions for legal error, as well as for substantial evidence and reason. See Morrison v. Board of Parole, 277 Or App 861, 863, 374 P3d 948, rev den, 360 Or 465 (2016); ORS 144.335(3) (providing that ORS 183.482(8) applies to parole board decisions). For the reasons discussed below, we conclude that the board did not err and, accordingly, affirm.

BACKGROUND

In 1980, petitioner was convicted for a murder committed on November 3,1977.1 He was sentenced to life in prison and, as required by ORS 144.120,2 the board set an initial parole release date. In 1997, shortly before petitioner’s scheduled release on parole, the board conducted an “exit interview” under ORS 144.125 to review whether petitioner was suitable for release.3 The board found that petitioner suffered from a [824]*824present severe emotional disturbance (PSED) “such as to constitute a danger to the health or safety of the community.” ORS 144.125(3)(a). As a result, the board postponed petitioner’s parole for two years and scheduled a new exit interview for 1999. In 1999, the board again postponed petitioner’s parole for two years, as it did following hearings held every two years thereafter until 2013, when the board postponed petitioner’s parole for 10 years rather than two years.

Petitioner’s challenge arises from his 2013 exit interview. At that 2013 hearing, the board found, as it had at each of petitioner’s previous parole review hearings, that he suffered from a PSED such as to constitute a danger to the health or safety of the community. In a “Board Action Form” (BAF), the board explained that, in making that finding, it was relying upon the reports of two psychologists who had examined petitioner:

“Based on the doctors’ reports and diagnos [e] s, coupled with all the information that the Board is considering, the Board concludes that the inmate suffers from a present severe emotional disturbance that constitutes a danger to the health or 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.”

Having once again found that petitioner suffered from a disqualifying PSED, the board deferred petitioner’s parole, this time for 10 years, pursuant to ORS 144.125(3)(a), which provides, as to a parole deferral based on a PSED:

“The board may not postpone a prisoner’s scheduled release date to a date that is less than two years, or more than 10 years, from the date of the hearing * * * The board shall determine the scheduled release date, and the prisoner may petition for interim review, in accordance with ORS 144.280.”4

[825]*825The cross-referenced statute, ORS 144.280, limits the board’s authority to postpone parole for more than two years to inmates for whom the board has found that “it is not reasonable to expect that the prisoner would be granted parole before the date of the subsequent hearing.” ORS 144.280(l)(b). The board is required to “determine the date of the subsequent hearing pursuant to rules adopted by the board.” ORS 144.280(l)(c). The applicable board rules include OAR 255-062-0016, which lists 14 “Factors to be Considered in Establishing a Deferral Period Longer Than Two Years.”

The BAF explained the board’s finding “that it is not reasonable to expect that [petitioner] will be granted a firm release date before 10 years from the current projected release date.” Specifically, that finding was

“based on, but not limited to the following factors in OAR 255-062-0016:
“(2) Infractions of institutional rules and discipline:
“The Board found inmate had several disciplinary violations, with the most recent occurring in February 2012. The 2012 violation was concerning based on * * * inappropriate comments to staff, but more concerning was inmate’s lack of understanding as to why he was held accountable for his behavior. Inmate did not take accountability for his actions, and demonstrated a disregard of the institution rules as well as [dis] respect for the female officer to whom he showed [a] rape-themed ‘joke.’
“(5) Inmate’s demonstrated lack of effort to address criminal risk factors of psychological or emotional problems:
“The Board found inmate could not identify or adequately discuss psychological or emotional growth even though he has had the benefit of many years of programming. Inmate had made efforts to address alcoholism, but had not addressed other factors leading to criminality. Inmate maintained he was innocent not only of his crime of conviction, but of his disciplinary violations and previous crimes, and hiding behind this innocence, inmate appeared to only superficially engage in self-improvement.
“(9) Inmate’s inability to experience or demonstrate remorse or empathy:
[826]*826“The Board did not find that inmate demonstrated remorse for his crime, as he maintained his innocence.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Jones v. Board of Parole
Court of Appeals of Oregon, 2026
Charlemagne v. Board of Parole
347 Or. App. 769 (Court of Appeals of Oregon, 2026)
Walton v. Board of Parole
346 Or. App. 359 (Court of Appeals of Oregon, 2025)
Hessel v. Board of Parole
345 Or. App. 781 (Court of Appeals of Oregon, 2025)
Jacobs v. Board of Parole
342 Or. App. 41 (Court of Appeals of Oregon, 2025)
Jenkins v. Board of Parole
341 Or. App. 134 (Court of Appeals of Oregon, 2025)
Wille v. Board of Parole
331 Or. App. 338 (Court of Appeals of Oregon, 2024)
Aikens v. Board of Parole
328 Or. App. 432 (Court of Appeals of Oregon, 2023)
United Academics of OSU v. OSU
502 P.3d 254 (Court of Appeals of Oregon, 2021)
King v. Board of Parole
482 P.3d 110 (Court of Appeals of Oregon, 2021)
Contreras v. Bd. of Parole & Post-Prison Supervision
443 P.3d 636 (Court of Appeals of Oregon, 2019)
State v. Link
441 P.3d 664 (Court of Appeals of Oregon, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
404 P.3d 1048, 287 Or. App. 822, 2017 WL 4159277, 2017 Ore. App. LEXIS 1087, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mendacino-v-board-of-parole-post-prison-supervision-orctapp-2017.