Willaby v. Board of Parole
This text of 797 P.2d 1050 (Willaby v. Board of Parole) 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.
Opinions
Petitioner seeks reviéw of an order of the Board of Parole. He was sentenced as a dangerous offender. In November, 1986, the Board set his parole consideration hearing date at 108 months from the date that he was committed to the custody of the Corrections Division. ORS 144.228(1)(a); OAR 255-38-005(l)-(3).1 At his request, the Board granted him an earlier parole consideration hearing, under ORS 144.228(1)(c) and OAR 255-38-005(9) and (10).2 At that hearing, in July, 1989, the Board found that the condition that made petitioner dangerous was not absent or in remission. [86]*86Therefore, it did not set a parole release date or make any change in the original parole consideration hearing date. ORS 144.228(1)(b); OAR 255-38-005(5), (7).3
On review, petitioner assigns error to the Board’s action. His chief argument is that there was not substantial evidence to support the Board’s finding that his condition was not absent or in remission. The state first argues that we lack jurisdiction, because the Board’s order is not a “final order” within the meaning of ORS 144.335,4 because it did not change petitioner’s status and could not have shortened the minimum time that he was to serve.
In Harris v. Board of Parole, 288 Or 495, 605 P2d 1181 (1980), the Supreme Court held that ORS 144.335 was intended to provide for judicial review of final orders by the Board of Parole relating to the granting of parole. It said:
“It would indeed be incongruous to suppose that the Oregon Legislature intended to provide for judicial review of sentences claimed to be excessive, but intended not to provide for judicial review of final orders by the Board of Parole, which determines [sic] the actual duration of imprisonment[.]” 288 Or at 503. (Emphasis supplied.)
[87]*87It further suggested that “not all orders by the Board of Parole relating to the granting of parole are final orders, so as to be subject to judicial review.” 288 Or at 504. More recently, the Court held that an order by the Board setting an initial parole consideration hearing date is a final order under ORS 144.335, because “this date determines * * * the [prisoner’s] minimum ‘duration of imprisonment.’ ” Meriweather v. Board of Parole, 307 Or 509, 511, 770 P2d 593 (1989), quoting Harris v. Board of Parole, supra, 288 Or at 503.
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(l)(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 255-38-005(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. ORS 144.228(1) (b) provides that, at the parole consideration hearing, if the dangerous condition is found to be present, reviews will be conducted at least once every two years until the condition is absent or in remission.
Here, the Board found that petitioner’s condition was not absent or in remission. As a result, it did not change the original parole consideration hearing date. Even if it had found petitioner’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 144.335.5
[88]*88The dissent argues that, if the Board had found petitioner’s condition to be absent or in remission, it would have been required to set a date certain for release. The change from an indefinite date to a definite date, according to the dissent, would affect the actual duration of imprisonment and make the Board’s order reviewable as a “final order” under ORS 144.335.
The Board’s order is comprised of a finding regarding the existence of the condition that made petitioner dangerous and a disposition regarding the date of parole consideration or release. The Board must first determine whether the condition still exists. Both we and the dissent presuppose the correctness of petitioner’s argument that his condition is absent or in remission in assessing whether the order is reviewable. However, assuming that fact does not necessarily mean that the duration of imprisonment arising from the 1986 order would have been changed by the Board. It could have imposed a definite date for release at the expiration of 108 months.
The original order establishing the 108-month parole consideration date was a final order, because it determined the minimum time petitioner will be incarcerated; the period of incarceration could be longer, but not shorter. Even if the Board had found in favor of petitioner regarding the absence or remission of his condition and had set a definite date, the duration of his imprisonment could only have remained the same or been enhanced. Had it been enhanced, petitioner would be entitled to seek review. Because it was not, and petitioner’s potential release date is still 108 months, albeit indefinite, the Board’s order did not affect the actual duration of imprisonment and is not a “final order.” Therefore, we lack jurisdiction to review it.
Petition for judicial review dismissed.
Free access — add to your briefcase to read the full text and ask questions with AI
Related
Cite This Page — Counsel Stack
797 P.2d 1050, 103 Or. App. 83, 1990 Ore. App. LEXIS 898, Counsel Stack Legal Research, https://law.counselstack.com/opinion/willaby-v-board-of-parole-orctapp-1990.