Weidner v. Armenakis

959 P.2d 623, 154 Or. App. 12, 1998 Ore. App. LEXIS 2445
CourtCourt of Appeals of Oregon
DecidedMay 20, 1998
Docket96C-11323; CA A96482
StatusPublished
Cited by51 cases

This text of 959 P.2d 623 (Weidner v. Armenakis) 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
Weidner v. Armenakis, 959 P.2d 623, 154 Or. App. 12, 1998 Ore. App. LEXIS 2445 (Or. Ct. App. 1998).

Opinions

[14]*14DEITS, C. J.

Plaintiff seeks review of the dismissal of his petition for a writ of habeas corpus, asserting that his continued incarceration at the Oregon State Correctional Institution is in violation of the law. Plaintiff was convicted of first-degree robbery in 1989, but execution of his sentence was suspended and he was placed on probation. Plaintiffs probation later was revoked and his previous indeterminate sentence of a period not to exceed 20 years was executed. On March 14, 1996, the Board of Parole and Post-Prison Supervision (Board) deferred plaintiffs release date for a period of two years, pursuant to the provisions of ORS 144.125. In the present action, plaintiff challenges the Board’s decision to defer his release, asserting that the Board erred in applying a version of the statute that was not in effect at the time that his crime was committed, in violation of ex post facto provisions of the state and federal constitutions. He also argues that, even assuming the Board applied the correct version of the statute, it erred in deferring his release under that version because it did not have before it a psychiatric or psychological diagnosis concluding that he suffered from a “severe emotional disturbance.” We affirm.

The critical statutory provision is ORS 144.125(3). The 1993 version of that statute allows the Board to defer release if it finds that the prisoner has a “mental or emotional disturbance, deficiency, condition or disorder predisposing the prisoner to the commission of a crime to a degree rendering the prisoner a danger to the health or safety of the community.” The prior version of the statute provided:

“If 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, the board may order the postponement of the scheduled parole release until a specified future date.” ORS 144.125(3) (1991).

In its order deferring plaintiffs release, the Board applied both the 1993 and 1991 version of the statute. The order provides, in pertinent part:

[15]*15“THE BOARD HAS RECEIVED A PSYCHOLOGICAL EVALUATION ON INMATE DATED 01/09/1996.
“THE BOARD, BASED ON ALL THE INFORMATION IT IS CONSIDERING AT THIS HEARING FINDS THAT YOU DO HAVE A MENTAL OR EMOTIONAL DISTURBANCE, DEFICIENCY CONDITION, OR DISORDER, PREDISPOSING YOU TO THE COMMISSION OF A CRIME TO A DEGREE RENDERING YOU A DANGER TO THE HEALTH OR SAFETY OF THE COMMUNITY. THE BOARD MAKES THE ADDITIONAL FINDING THAT THE DOCTOR’S DIAGNOSIS COUPLED WITH ALL THE INFORMATION IT IS CONSIDERING, DOES RESULT IN A FINDING OF A SEVERE EMOTIONAL DISTURBANCE THAT CONSTITUTES A DANGER TO THE HEALTH OR SAFETY OF THE COMMUNITY. THE BOARD HAS CONSIDERED THIS MATTER UNDER THE PROVISION OF ORS 144.125 AS AMENDED IN 1993 AND THE LAWS IN EFFECT AT THE TIME OF THE COMMITMENT OFFENSE. THE BOARD DOES FIND THE RESULTS TO BE THE SAME UNDER EITHER VERSION.”

In reaching its decision, the Board considered a psychological evaluation of plaintiff conducted by Dr. Robert Davis. That evaluation recited plaintiffs criminal history, his history of disciplinary infractions in the penitentiary, and his history of drug abuse, as well as his performance of a battery of psychological tests. Plaintiffs personality profile was characterized as “quite overtly aggressive,” with “intermittent loss of control of hostile or aggressive feelings,” and with the potential for “ ‘blow[ing] up’ unpredictably on slight provocation.” Davis concluded that plaintiff minimized his crimes and disciplinary infractions and that he “does not accept responsibility for his criminal behavior.” In his conclusion, Davis stated:

“[Plaintiff] presents a significant emotional disturbance which is seen in ideation confusion and over-reactivity representing a Mixed Personality Disorder with Histrionic and Antisocial features which do constitute a danger to the health or safety of others in the community at the present time.”

Plaintiff first argues that the Board’s application of ORS 144.125(3) (1993) violated the ex post facto provisions of [16]*16the state and federal constitutions. In Meadows v. Schiedler, 143 Or App 213, 924 P2d 314 (1996), we determined that the Board’s application of ORS 144.125(3) (1993) to defer the release on parole of prisoners whose crimes were committed before the effective date of that statute violated the ex post facto provisions of the state and federal constitutions. Plaintiffs crimes were committed before the effective date of the Act and, accordingly, plaintiff is correct that the Board erred in applying the 1993 statute. However, that conclusion is not dispositive here because, as noted above, the Board also made alternative findings under the earlier version of the statute and concluded that plaintiffs release should be deferred under that statutory standard.

We therefore turn to the question of whether the Board’s conclusion that plaintiff suffers from a “present severe emotional disturbance that constitutes a danger to the health or safety of the community” satisfied the requirements of ORS 144.125(3) (1991). Plaintiffs sole argument on this point is that the psychiatric or psychological diagnosis itself must include the determination that the prisoner suffers from a “present severe emotional disturbance such as to constitute a danger to the health or safety of the community.” Plaintiff asserts that Davis’ diagnosis does not satisfy that criterion because it does not include such a conclusion.

Defendant responds that, although ORS 144.125(3) (1991) does appear to require the existence of a psychiatric or psychological diagnosis, the statute does not require the diagnosis itself to include a specific determination that the prisoner suffers from a “present severe emotional disturbance such as to constitute a danger to the health and safety of the community.” It is defendant’s position that this statutory standard is a legal one, rather than a medical one, and that it is for the Board, not the psychiatrist or psychologist, to apply this legal standard. Defendant further argues that the Board is entitled to review all of the evidence before it, not just the psychiatric or psychological diagnosis, in deciding whether a prisoner suffers from a “present severe emotional disturbance such as to constitute a danger to the health or safety of the community.” ORS 144.125(3) (1991). For the reasons that follow, we agree with defendant.

[17]

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

Related

Charlemagne v. Board of Parole
347 Or. App. 769 (Court of Appeals of Oregon, 2026)
Washington v. Bd. of Parole & Post-Prison Supervision
432 P.3d 372 (Court of Appeals of Oregon, 2018)
Smith v. Board of Parole & Post-Prison Supervision
391 P.3d 807 (Court of Appeals of Oregon, 2017)
Edwards v. Board of Parole & Post-Prison Supervision
355 P.3d 166 (Court of Appeals of Oregon, 2015)
Gordon v. Board of Parole & Post-Prison Supervision
340 P.3d 150 (Court of Appeals of Oregon, 2014)
Guy Ehler v. Oregon Board of Parole
384 F. App'x 690 (Ninth Circuit, 2010)
Carter v. BOARD OF PAROLE AND POST-PRISON SUPERVISION
196 P.3d 111 (Court of Appeals of Oregon, 2008)
Gordon v. Board of Parole & Post-Prison Supervision
175 P.3d 461 (Oregon Supreme Court, 2007)
Birch v. Thompson
224 F. App'x 705 (Ninth Circuit, 2007)
Cooley v. Bartlett
212 F. App'x 603 (Ninth Circuit, 2006)
Williams v. Bartlett
201 F. App'x 501 (Ninth Circuit, 2006)
Duyet Hung Le v. Czerniak
127 F. App'x 292 (Ninth Circuit, 2005)
State v. Gibson
100 P.3d 750 (Court of Appeals of Oregon, 2004)
Gordon v. Hill
76 P.3d 150 (Court of Appeals of Oregon, 2003)
Rodriguez v. Board of Parole & Post-Prison Supervision
67 P.3d 970 (Court of Appeals of Oregon, 2003)
Mendacino v. Lampert
43 P.3d 1216 (Court of Appeals of Oregon, 2002)
Roth v. Johnson
43 P.3d 1154 (Court of Appeals of Oregon, 2002)
Pachl v. Morrow
33 P.3d 1063 (Court of Appeals of Oregon, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
959 P.2d 623, 154 Or. App. 12, 1998 Ore. App. LEXIS 2445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weidner-v-armenakis-orctapp-1998.