Barrett v. Board of Parole ( 2024 )

No. 297 May 8, 2024 463
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
JACOB BARRETT,
Petitioner,
v.
BOARD OF PAROLE AND
POST-PRISON SUPERVISION,
Respondent.
Board of Parole and Post-Prison Supervision
A177386
Submitted June 20, 2023.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Neil F. Byl, Deputy Public Defender, Office of
Public Defense Services, filed the brief for petitioner. Jacob
Barrett filed the supplemental brief pro se.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jeff J. Payne, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
ORTEGA, P. J.
Affirmed.
464 Barrett v. Board of Parole
ORTEGA, P. J.
In 1994, petitioner and two others robbed a conve-
nience store at gunpoint, and petitioner shot and killed the
store clerk. State v. Barrett, 331 Or 27, 10 P3d 901 (2000),
overruled in part by Martinez v. Cain, 336 Or 136, 458 P3d
670 (2020). The trial court sentenced petitioner pursuant to
ORS 163.105 (1993) to life in prison with a 30-year mini-
mum term of incarceration for aggravated murder, imposed
a durational-departure sentence of 72 months under the
sentencing guidelines for first-degree robbery, and ordered
those sentences to be served consecutively. In May 2021, the
Board of Parole and Post-Prison Supervision (the board)
held a murder-review hearing and found that petitioner was
likely to be rehabilitated within a reasonable period of time.
The board converted his sentence for aggravated murder
to life with the possibility of parole, set his prison term for
168 months, and set his projected parole release date for
January 5, 2022.
Petitioner sought administrative review of the
board’s decision, arguing, among other things, that the
board was required to “sum and/or unsum” his consecutive
prison terms for aggravated murder and first-degree rob-
bery pursuant to ORS 144.079 and ORS 144.783 and the
board’s applicable rules. According to petitioner, had the
board “summed” those consecutive terms, it then had dis-
cretion to “unsum” them, “effectively treating them as con-
current to one another.” The board concluded that it lacked
authority to “unsum” petitioner’s prison terms and denied
relief. Petitioner seeks judicial review and renews his con-
tention that the board was required to “sum and/or unsum
his prison terms.” We affirm.
“ ‘Summing’ refers to the board’s practice of adding
consecutive prison terms together; ‘unsumming’ refers to
its determination that consecutive sentences are not appro-
priate, thus allowing terms to run concurrently.” Jenkins v.
Amsberry, 288 Or App 693, 694 n 1, 404 P3d 1150 (2017).
The board’s authority to “sum and/or unsum” petitioner’s
prison terms is governed by ORS 144.783 (1993) and ORS
Cite as 332 Or App 463 (2024) 465
144.079 (1993), which cross-reference each other.1 ORS
144.783 (1993) provided:
“(1) When a prisoner is sentenced to two or more con-
secutive terms of imprisonment, the duration of the term
of imprisonment shall be the sum of the terms set by the
State Board of Parole and Post-Prison Supervision pur-
suant to the ranges established for the offenses, subject to
ORS 144.079, and subject to the variations established pur-
suant to ORS 144.785(1).
“(2) The duration of imprisonment pursuant to con-
secutive sentences may be less than the sum of the terms
under subsection (1) of this section if the board finds, by
affirmative vote of a majority of its members that con-
secutive sentences are not appropriate penalties for the
criminal offenses involved and that the combined terms
of imprisonment are not necessary to protect community
security.”
(Emphasis added.) In turn, ORS 144.079 (1993) provided, in
pertinent part:
“(1)(a) If a prisoner is sentenced to terms of imprison-
ment that are consecutive to one another and result from
crimes committed during the period before the prisoner’s
first initial parole hearing, * * * the total term resulting
from the crimes committed * * * shall be determined by the
State Board of Parole and Post-Prison Supervision as fol-
lows, except as provided in subsection (2) of this section, and
the total terms so determined shall then be summed as
provided in ORS 144.783(1).
“* * * * *
“(2) The method established by this section for deter-
mining, where applicable, the total term resulting from the
summing of consecutive sentences shall apply only if none
of the crimes involved is:
“(a) Murder, as defined in ORS 163.115 or any aggra-
vated form thereof.”
(Emphases added.)
1
We apply the statutes that were in effect at the time petitioner committed
his offenses. See Janowski/Fleming v. Board of Parole, 349 Or 432, 435, 245 P3d
1270 (2010) (applying the statutes and administrative rules in effect when the
petitioners committed their crimes). For that reason, petitioner’s pro se argument
regarding the 1987 version of ORS 144.079 is inapposite.
466 Barrett v. Board of Parole
Under ORS 144.783(1) (1993), the board must set
the “duration of the term of imprisonment” of consecutive
prison terms “subject to ORS 144.079.” The board’s authority
to sum consecutive prison terms is therefore, at minimum,
“affected by” or “modified by” ORS 144.079. See Vasquez v.
Double Press Mfg., Inc., 364 Or 609, 621, 437 P3d 1107 (2019)
(explaining that the ordinary meaning of “subject to” can
have the narrow meaning of “authorized by” or “under” but
can also have a broader meaning of “affected by” or “mod-
ified by”). And the plain terms of ORS 144.079(2)(a) (1993)
provide that the board has authority to “sum” consecutive
prison terms “only if none” of the terms is for the crime of
aggravated murder. Cf. Plane v. Board of Parole, 114 Or App
60, 63, 834 P2d 549 (1992) (“ORS 144.079 applies * * * only
when none of a prisoner’s consecutive sentences is listed in
ORS 144.079(2). ‘None’ means none—not ‘some.’ ” (Emphasis
in original.)). Further, ORS 144.783(2) (1993) plainly pro-
vides that the board has authority to “unsum” consecutive
prison terms—that is, to set the total duration of impris-
onment to less than the “summed” consecutive terms of
imprisonment—only after it has first summed them. It fol-
lows that when the board lacks authority to “sum” prison
terms, it necessarily lacks the authority to “unsum” them.
Here, one of petitioner’s two prison terms is for
the crime of aggravated murder. The board therefore lacks
authority to “sum” his consecutive prison terms. And because
the board lacks authority to “sum” petitioner’s aggravated
murder prison term with his first-degree robbery prison
term, it also necessarily lacks authority to “unsum” those
terms.2
Affirmed.
2
Because we conclude that the board lacks authority to “sum and/or
unsum” petitioner’s prison terms under ORS 144.079 (1993) and ORS 144.783
(1993), we need not address the board’s argument that it lacks authority to do
so under ORS 144.050, given that petitioner’s first-degree robbery sentence is a
guidelines sentence.
Our disposition also obviates the need to address petitioner’s argument that
the board should have exercised its discretion to “unsum” his prison terms, given
that, in his view, his first-degree robbery conviction would merge with his aggra-
vated murder conviction under Martinez v. Cain, 366 Or 136, 458 P3d 670 (2020).
We therefore express no opinion on the merits of that argument.