Tate v. Board of Parole

812 P.2d 422, 107 Or. App. 374, 1991 Ore. App. LEXIS 809

• Court: Court of Appeals of Oregon
• Decided: May 22, 1991
• Docket: CA A65449
• Status: Published

Opinion

PER CURIAM

Petitioner seeks judicial review of a Board of Parole order setting his prison term at 24 months. He assigns as errors the Board’s calculation of his history/risk score, its application of four aggravating circumstances and its rejection of three mitigating factors. The Board’s setting of petitioner’s history/risk score was consistent with its rules and practice, and the record supports its rejection of the mitigating factors and its application of three of the four aggravating factors in setting his prison term beyond his matrix range.

We write only to address the Board’s finding of aggravating factor “P,” which, under its rules in effect at the time of hearing, referred to “crime committed as a part of gang related activity.” Concededly, that factor is not involved and was not discussed at the hearing. Under the previous rules, factor “P” referred to “persistent misconduct while under supervision.” That subject was discussed at the hearing and is applicable to petitioner. In its order, the Board found aggravating factor “P - Probation,” so it is clear that it was not finding gang-related activity.

Although the current Board rules do not specifically refer to misconduct while under supervision, they do permit “other” factors to be considered under aggravating factor “Q.” The Board’s error was technical and harmless.

Affirmed.