GRABER, P. J.
Petitioner seeks review of a final order of the Board of Parole setting his release date. ORS 144.335. He contends that, in overriding one minimum sentence and sustaining another, the Board applied new rules that took effect after his convictions, contrary to the
ex post facto
provisions of the Oregon
and federal
constitutions. We affirm.
In 1986, the trial court convicted petitioner of rape and burglary and sentenced him to 20 years in prison, with a minimum sentence of 10 years for each offense. The sentences were to run consecutively. Under the rules then in effect,
when a court imposed consecutive sentences, the Board had to consider the minimum sentences as a unit and sustain or override all of them; it could not override one minimum sentence and sustain another.
Hill v. Board of Parole,
85 Or App 215, 735 P2d 1301 (1987);
Roof v. Board of Parole,
85 Or App 188, 736 P2d 193 (1987).
The Board amended OAR 255-35-022 and OAR 255-35-023 in 1987, in response to
Hill
and
Roof.
The Board
deleted the second sentence of
former
OAR 255-35-022(2), which is italicized in note 3,
supra,
and added subsection (3) to OAR 255-35-023:
“When there are consecutive minimum sentences, and the Board finds that the combined mínimums are not appropriate penalties for the criminal offenses involved, and are not necessary to protect community security, the Board, by four concurring votes, may override one or more of the judicially imposed mínimums and set a prison term which is less than the sum of the minimum terms.”
Therefore, when a court imposes consecutive minimum sentences, the rules no longer prohibit the Board from overriding one minimum sentence and sustaining another.
The Board reconsidered petitioner’s release date in 1988, because it had previously mistakenly treated the minimum sentences as concurrent, instead of consecutive.
It overrode one 120-month minimum sentence, finding that “the minimum term is not an appropriate penalty for the criminal offense and the minimum term is not necessary to protect the public.” It concurred with the other minimum, finding “the minimum term an appropriate sanction for the criminal conduct and necessary for the protection of the public * * *.”
We first consider whether the Board’s rules are “laws” within the meaning of the relevant constitutional provisions. No Oregon appellate court has expressly decided whether an
ex post facto
analysis applies to administrative rules. In
Perkey v. Psychiatric Security Review Board,
65 Or App 259, 262, 670 P2d 1061 (1983), we defined
ex post facto
legislation as that which
“makes criminal an act not criminal when done, makes an act a greater crime than it was when it was committed, imposes a greater punishment than that in effect at the time of the offense or permits a conviction upon lesser or different evidence than was required at the time the offense was committed.”
That is substantially the same definition as the Supreme Court used in
Colder v. Bull,
3 US (3 Dall) 386, 390,1 L Ed 648 (1798). The Oregon and federal constitutional provisions are worded similarly. United States Supreme Court cases are
instructive in considering the scope of the
ex post facto
prohibition in the Oregon Constitution.
In
Ross v. Oregon,
227 US 150, 162-163, 33 S Ct 220, 57 L Ed 458 (1913), the Court stated that it had uniformly regarded the
ex post facto
provision of the federal constitution
“as reaching every form in which the legislative power of a state is exerted, whether it be a constitution, a constitutional amendment, an enactment of the legislature, a by-law or ordinance of a municipal corporation,
or a regulation or order of some other instrumentality of the state exercising delegated legislative authority”
(Emphasis supplied.)
The reasoning of
Ross
applies to Board rules, because the Board derives its rulemaking authority from statutes.
See
ORS 144.050; ORS 144.780; ORS 144.110(2)(a). Moreover, through its rules governing release dates, the Board affects the amount of freedom or punishment that a prisoner in fact receives.
See Warden v. Marrero,
417 US 653, 663, 94 S Ct 2532, 41 L Ed 2d 383 (1974);
Harris v. Board of Parole,
288 Or 495, 503, 605 P2d 1181 (1980). The constitution prohibits
ex post facto
laws that “[impose] a greater punishment than that in effect at the time of the offense * * *.”
Perkey v. Psychiatric Security Review Board, supra,
65 Or App at 262;
see also
ORS 144.780(2). That being so, an
ex post facto
analysis applies to Board rules that govern the setting of a parole release date, under both the Oregon and federal constitutions.
The next question is whether the 1987 rules impose a greater punishment than did the former rules. Previously, the Board could only sustain or override all of the minimum sentences. The maximum punishment, sustaining all of the judicial minimum sentences, remains the same. The key difference is that the new rules provide the Board with
more
flexibility to impose a
lesser
punishment than was imposed by the trial court. It may now override one minimum while sustaining another. The Board is not required, nor does it have the authority, to impose any greater punishment than before. The amendment to the rules had an ameliorative effect on petitioner’s possible punishment, rather than being more onerous. Application of the new rules to petitioner did not violate the Oregon Constitution.
See State v. Smith,
56 Or 21, 26, 107 P 980 (1910);
Perkey v. Psychiatric Security Review Board, supra.
Petitioner’s argument assumes that, under the old rules, the Board would have overridden both of his minimum sentences, rather than neither of them. However, the appropriate
ex post facto
analysis only compares the
possible
punishments under the old and new schemes.
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GRABER, P. J.
Petitioner seeks review of a final order of the Board of Parole setting his release date. ORS 144.335. He contends that, in overriding one minimum sentence and sustaining another, the Board applied new rules that took effect after his convictions, contrary to the
ex post facto
provisions of the Oregon
and federal
constitutions. We affirm.
In 1986, the trial court convicted petitioner of rape and burglary and sentenced him to 20 years in prison, with a minimum sentence of 10 years for each offense. The sentences were to run consecutively. Under the rules then in effect,
when a court imposed consecutive sentences, the Board had to consider the minimum sentences as a unit and sustain or override all of them; it could not override one minimum sentence and sustain another.
Hill v. Board of Parole,
85 Or App 215, 735 P2d 1301 (1987);
Roof v. Board of Parole,
85 Or App 188, 736 P2d 193 (1987).
The Board amended OAR 255-35-022 and OAR 255-35-023 in 1987, in response to
Hill
and
Roof.
The Board
deleted the second sentence of
former
OAR 255-35-022(2), which is italicized in note 3,
supra,
and added subsection (3) to OAR 255-35-023:
“When there are consecutive minimum sentences, and the Board finds that the combined mínimums are not appropriate penalties for the criminal offenses involved, and are not necessary to protect community security, the Board, by four concurring votes, may override one or more of the judicially imposed mínimums and set a prison term which is less than the sum of the minimum terms.”
Therefore, when a court imposes consecutive minimum sentences, the rules no longer prohibit the Board from overriding one minimum sentence and sustaining another.
The Board reconsidered petitioner’s release date in 1988, because it had previously mistakenly treated the minimum sentences as concurrent, instead of consecutive.
It overrode one 120-month minimum sentence, finding that “the minimum term is not an appropriate penalty for the criminal offense and the minimum term is not necessary to protect the public.” It concurred with the other minimum, finding “the minimum term an appropriate sanction for the criminal conduct and necessary for the protection of the public * * *.”
We first consider whether the Board’s rules are “laws” within the meaning of the relevant constitutional provisions. No Oregon appellate court has expressly decided whether an
ex post facto
analysis applies to administrative rules. In
Perkey v. Psychiatric Security Review Board,
65 Or App 259, 262, 670 P2d 1061 (1983), we defined
ex post facto
legislation as that which
“makes criminal an act not criminal when done, makes an act a greater crime than it was when it was committed, imposes a greater punishment than that in effect at the time of the offense or permits a conviction upon lesser or different evidence than was required at the time the offense was committed.”
That is substantially the same definition as the Supreme Court used in
Colder v. Bull,
3 US (3 Dall) 386, 390,1 L Ed 648 (1798). The Oregon and federal constitutional provisions are worded similarly. United States Supreme Court cases are
instructive in considering the scope of the
ex post facto
prohibition in the Oregon Constitution.
In
Ross v. Oregon,
227 US 150, 162-163, 33 S Ct 220, 57 L Ed 458 (1913), the Court stated that it had uniformly regarded the
ex post facto
provision of the federal constitution
“as reaching every form in which the legislative power of a state is exerted, whether it be a constitution, a constitutional amendment, an enactment of the legislature, a by-law or ordinance of a municipal corporation,
or a regulation or order of some other instrumentality of the state exercising delegated legislative authority”
(Emphasis supplied.)
The reasoning of
Ross
applies to Board rules, because the Board derives its rulemaking authority from statutes.
See
ORS 144.050; ORS 144.780; ORS 144.110(2)(a). Moreover, through its rules governing release dates, the Board affects the amount of freedom or punishment that a prisoner in fact receives.
See Warden v. Marrero,
417 US 653, 663, 94 S Ct 2532, 41 L Ed 2d 383 (1974);
Harris v. Board of Parole,
288 Or 495, 503, 605 P2d 1181 (1980). The constitution prohibits
ex post facto
laws that “[impose] a greater punishment than that in effect at the time of the offense * * *.”
Perkey v. Psychiatric Security Review Board, supra,
65 Or App at 262;
see also
ORS 144.780(2). That being so, an
ex post facto
analysis applies to Board rules that govern the setting of a parole release date, under both the Oregon and federal constitutions.
The next question is whether the 1987 rules impose a greater punishment than did the former rules. Previously, the Board could only sustain or override all of the minimum sentences. The maximum punishment, sustaining all of the judicial minimum sentences, remains the same. The key difference is that the new rules provide the Board with
more
flexibility to impose a
lesser
punishment than was imposed by the trial court. It may now override one minimum while sustaining another. The Board is not required, nor does it have the authority, to impose any greater punishment than before. The amendment to the rules had an ameliorative effect on petitioner’s possible punishment, rather than being more onerous. Application of the new rules to petitioner did not violate the Oregon Constitution.
See State v. Smith,
56 Or 21, 26, 107 P 980 (1910);
Perkey v. Psychiatric Security Review Board, supra.
Petitioner’s argument assumes that, under the old rules, the Board would have overridden both of his minimum sentences, rather than neither of them. However, the appropriate
ex post facto
analysis only compares the
possible
punishments under the old and new schemes. It is not appropriate to speculate about how the Board’s decision might have differed under the old rules, if the new rules themselves are not more onerous.
See Dobbert v. Florida,
432 US 282, 294, 97 S Ct 2290, 53 L Ed 2d 344 (1977).
The prohibition against
ex post facto
laws in the United States Constitution does not provide petitioner with any greater protection. In
Miller v. Florida,
482 US 423, 430, 107 S Ct 2446, 96 L Ed 2d 351 (1987), the Court stated that under its
“test for determining whether a criminal law is ex post facto * * *, two critical elements must be present: first, the law ‘must be retrospective, that is, it must apply to events occurring before its enactment’; and second, ‘it must disadvantage the offender affected by it.’ ” (Citation omitted.)
Further, even if a procedural change in the law works to the disadvantage of an offender, it is not
ex post facto
if it “does ‘not increase the punishment, nor change the ingredients of the offence or the ultimate facts necessary to establish guilt.’ ”
Miller v. Florida, supra,
482 US at 433, (quoting
Hopt v. Utah,
110 US 574, 590, 4 S Ct 202, 28 L Ed 262 (1884)).
The new rules do not fail the
Miller
test. The Board applied the amended rules retrospectively to petitioner. However, the amended rules do not disadvantage him, because they are not more onerous than the old rules and do not substantially change the procedure for considering the length of his sentence.
Affirmed.