Sager v. Board of Parole & Post-Prison Supervision

856 P.2d 329, 121 Or. App. 607, 1993 Ore. App. LEXIS 1175
CourtCourt of Appeals of Oregon
DecidedJuly 14, 1993
DocketCA A71909; 92C-10191; CAA75115
StatusPublished
Cited by2 cases

This text of 856 P.2d 329 (Sager 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
Sager v. Board of Parole & Post-Prison Supervision, 856 P.2d 329, 121 Or. App. 607, 1993 Ore. App. LEXIS 1175 (Or. Ct. App. 1993).

Opinion

De MUNIZ, J.

In these cases consolidated on appeal, petitioner1 petitions for review from an order of the Board of Parole and Post-Prison Supervision (Board) denying his request for a parole consideration hearing. ORS 144.228(l)(c). He also appeals from a judgment dismissing his petition for a writ of habeas corpus. We dismiss the petition for judicial review and affirm the judgment.

In June, 1987, petitioner was convicted of robbery in the first degree with a firearm and sentenced as a dangerous offender. He received a 30-year dangerous offender sentence, ORS 161.725, with a 15-year minimum, ORS 144.110(1), and a 5-year gun minimum. ORS 161.610. Those sentences were to run concurrently with the sentence on the robbery conviction. In November, 1987, the Board sustained the 15-year minimum. ORS 144.110(2)(a). It set petitioner’s parole consideration hearing date for 180 months. ORS 144.228(l)(a).

On September 17, 1991, petitioner requested an administrative review of the 1987 order and asked for a psychological evaluation pursuant to ORS 144.228(l)(c). The Board denied the request on September 19, holding that petitioner had failed to show any evidence to give the Board reasonable cause to believe that his dangerous condition was in remission. ORS 144.228(l)(c). Petitioner submitted a second request for administrative review; the Board denied that request in October. Petitioner seeks judicial review of the October denial.

Petitioner’s position is that the Board is required to set his parole consideration hearing date at the earliest time he would be eligible for release. ORS 144.120. His classification on the matrix is 60 to 80 months. He contends that his initial release date must be set within that period and not after the 15-year minimum sentence, as the Board ordered in 1987.

Petitioner contends that, under OAR 255-80-001(2), he has exhausted his administrative remedies and, therefore, that we may review the 1991 order under ORS 144.335. The state contends that we do not have jurisdiction, because the [611]*611order is not a final order ‘ ‘related to the granting, revoking, or discharging of parole,” as required by ORS 144.335.

Not all orders of the Board are final, although an order setting a parole consideration date is a final order, because it determines the minimum duration of imprisonment. Meriweather v. Board of Parole, 307 Or 509, 511, 770 P2d 593 (1989). We agree with the state that the order petitioner challenges here does not determine the duration of his imprisonment.

In Willaby v. Board of Parole, 103 Or App 83, 797 P2d 1050, rev den 310 Or 547 (1990), the prisoner had been sentenced as a dangerous offender and, pursuant to ORS 144.228(1)(c), he had requested a parole consideration hearing before his scheduled consideration date. We set out the procedure whereby a dangerous offender is considered for parole:

“When a person has been sentenced as a dangerous offender, the Board does not establish an initial parole release date at the prisoner’s prison term hearing. Instead,- it sets a parole consideration hearing date, which is ‘the earliest time the prisoner is eligible for parole under the board’s rules.’ ORS 144.228(1)(a). The Board sets the parole consideration hearing date in the same manner as it sets an initial parole release date for prisoners who are not sentenced as dangerous offenders. Meriweather v. Board of Parole, supra, 307 Or at 511 n 3. The prisoner can request a parole consideration hearing before the scheduled date. ORS 144.228(1)(c); OAR 255-38-055(9)(10). If the Board finds that the condition that made the prisoner dangerous is absent or in remission, it must set a release date or order parole.” 103 Or App at 87.

After a hearing, the Board refused to change the original parole consideration hearing date, because it determined that the prisoner’s condition was not in remission. We affirmed, stating:

“Even if [the Board] had found [the prisoner’s] condition to be absent or in remission, it could not have set his release for a date earlier than his original parole consideration hearing date, because that is the earliest date that he is eligible for parole. Consequently, the Board’s action could not have changed the ‘minimum duration’ of petitioner’s imprisonment within the meaning of ORS 144.335.” 103 Or App at 87.

[612]*612Here, in the 1987 order, the Board upheld petitioner’s minimum sentence of 15 years and set the parole consideration hearing at the expiration of that term. The fact that the Board later denied his request for a hearing could not alter the 15-year minimum. Even if it had held a hearing, it could not have changed the “minimum duration” of petitioner’s imprisonment. Because the Board’s order denying a hearing could not affect the duration of imprisonment, it is not a final, reviewable order under ORS 144.335.

Petitioner has also appealed from the dismissal of his petition for habeas corpus in which he alleged that he should have had an earlier parole consideration hearing date, that he has been denied a psychological evaluation at state expense that would have shown that he no longer suffers from a condition making him dangerous, that the Department of Corrections has failed to provide meaningful treatment programs and that he has been denied periodic reviews to determine whether he is entitled to an earlier release date. The trial court held that it did not have jurisdiction and dismissed the petition.

Petitioner did not appeal the 1987 Board order sustaining the 15-year minimum term. His position is that, at that time, there was no petition for judicial review, because the parole consideration hearing date was not a firm release date, and, therefore, there was no final order. Therefore, he contends that, when the Supreme Court held in Meriweather v. Board of Parole, supra,

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Cite This Page — Counsel Stack

Bluebook (online)
856 P.2d 329, 121 Or. App. 607, 1993 Ore. App. LEXIS 1175, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sager-v-board-of-parole-post-prison-supervision-orctapp-1993.