Person v. Board of Parole ( 2023 )

332 August 9, 2023 No. 399
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
GERALD OSCAR PERSON,
Petitioner,
v.
BOARD OF PAROLE
AND POST-PRISON SUPERVISION,
Respondent.
Board of Parole and Post-Prison Supervision
A174283
Argued and submitted June 24, 2022.
Kyle Krohn, Deputy Public Defender, argued the cause
for petitioner. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Denise G. Fjordbeck, Assistant Attorney General,
argued the cause for respondent. On the brief were Ellen F.
Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Joanna Hershey, Assistant Attorney General.
Before Aoyagi, Presiding Judge, Lagesen, Chief Judge,
and Mooney, Judge.
AOYAGI, P. J.
Reversed and remanded.
Mooney, J., dissenting.
Cite as 327 Or App 332 (2023) 333
334 Person v. Board of Parole
AOYAGI, P. J.
For crimes committed in 1988 and 1989, petitioner
was sentenced as a dangerous offender under ORS 161.725
(1987),1 which, among other things, required the sentenc-
ing court to find that he suffered from a severe personality
disorder indicating a propensity toward dangerous criminal
activity. In April 2020, the Board of Parole and Post-Prison
Supervision deferred petitioner’s parole consideration for
24 months pursuant to ORS 144.228 (1987)2 on the basis
that the condition that makes him dangerous is not absent
or in remission. Petitioner seeks judicial review of the defer-
ral order. In his sole assignment of error, he argues that
the board “applied incorrect standards and failed to demon-
strate substantial evidence and reason in several ways.” As
explained below, we agree that the board’s order lacks sub-
stantial reason, in that the board found that petitioner has
“a mental or emotional disturbance, deficiency, condition, or
disorder” predisposing him to certain crimes and concluded
“therefore” that the condition that made him dangerous (i.e.,
a severe personality disorder predisposing him to dangerous
crimes) was not in remission, without adequately explaining
how that finding leads to that conclusion. We reverse and
remand on that basis, without reaching petitioner’s other
arguments.
1
ORS 161.725 (1987), amended by Or Laws 1989, ch 790, § 75; Or Laws 1993,
ch 334, § 5; Or Laws 2005, ch 463, §§ 9, 14; Or Laws 2007, ch 16, § 4.
2
ORS 144.228 (1987), amended by Or Laws 1991, ch 318, § 2; Or Laws 1993,
ch 334, § 3; Or Laws 2009, ch 660, § 4. The order on review expressly states that
the board is “[a]pplying the law in effect at the time of the commitment offense(s).”
We therefore understand the board to have applied ORS 144.228 (1987) in decid-
ing to defer parole consideration, and we conduct our analysis accordingly. The
board’s order also states that it would have reached the same result under “the
current rules.” In context, that statement is ambiguous; perhaps the board meant
it would reach the same result under the current version of ORS 144.228. In any
event, we do not understand the board to have concluded that the current version
of the statute actually applies to petitioner, nor has the board explained how the
current version would apply. See generally Morrison v. Board of Parole, 277 Or
App 861, 866, 374 P3d 948, rev den, 360 Or 465 (2016) (holding that the board
could apply a newer version of ORS 144.228 without violating ex post facto princi-
ples where the intervening statutory amendments were procedural in nature and
“the substantive standard for determining whether a dangerous offender qual-
ifies to have the board set a parole release date” had not changed). If the board
means to rely on the current version of ORS 144.228 in this case, it can clarify
that point on remand and explain its reasoning in accord with the substantial
reason requirement.
Cite as 327 Or App 332 (2023) 335
We begin with an overview of the applicable legal
framework. Under ORS 161.725 (1987), a trial court could
impose an indeterminate sentence of 30 years on a person
found to be a dangerous offender. To sentence someone as a
dangerous offender, the court had to find (1) “that because
of the dangerousness of the defendant an extended period
of confined correctional treatment or custody is required
for the protection of the public”; (2) that the defendant was
being sentenced for (i) a Class A felony, or (ii) a felony that
seriously endangered the life or safety of another and had
previously been convicted of a felony arising from a different
criminal episode; and (3) that the defendant was “suffering
from a severe personality disorder indicating a propensity
toward criminal activity.” ORS 161.725(1), (2) (1987).
In State v. Huntley, 302 Or 418, 730 P2d 1234 (1986),
the Supreme Court construed ORS 161.725 (1985).3 As to the
requirement that the defendant have a “severe personality
disorder,” the court explained that the requirement contem-
plates both that the defendant is “mentally abnormal” (as
opposed to normal but dangerous) and that the defendant
has a propensity toward “dangerous criminal activity” (not
just any criminal activity):
“The statutory language requiring that the court must find
that the defendant is suffering from a severe personality
disorder indicating a propensity toward criminal activity
is most troublesome. We have already mentioned that those
words mean that there must be a finding that the defendant
is suffering from a severe mental or emotional disorder indi-
cating a propensity toward continuing dangerous criminal
activity. The statute is a dangerous offender statute, not
an habitual offender statute, and it would make no sense
for a court to find that someone has engaged in dangerous
conduct but has a propensity in the future to continue only
non-dangerous criminal activity such as committing forg-
ery. Further, the statute contemplates a severe personality
disorder. The statute refers to a mentally abnormal person
and not to a dangerous normal person.”
Id. at 430 (emphasis in original; footnote omitted).
3
The version of ORS 161.725 that the court construed in Huntley is identical
to the 1987 version that we address in this case. See Huntley, 302 Or at 422 (quot-
ing statute).
336 Person v. Board of Parole
The court then went on to discuss how sentencing
courts should approach, in practice, the task of determining
whether someone has a “severe personality disorder.” The
court described that aspect of the statute as “most trouble-
some.” Id. It explained that a sentencing court should con-
sider the presentence report, the psychiatric report, and the
evidence from the trial or presentencing hearing. Id. at 423,
428. As for what to do with that information, the court noted
some guidance provided in a 1974 publication of a national
judicial council, but it found that guidance “inadequate”
and “too vague” to be useful. Id. at 430-31. Instead, the
court recommended looking to the American Psychological
Association’s Diagnostic and Statistical Manual of Mental
Disorders (3d Ed 1980) (DSM), which defines “antisocial
personality disorder” and “other personality disorders that
may be relevant for application in other cases.” Id. at 432-34.
Finally, applying the articulated principles, and looking to
the DSM, the court agreed with the sentencing court that
the defendant’s antisocial personality disorder qualified
as a severe personality disorder. Id. at 435; see also id. at
431 (“We believe that the legislature in utilizing the statu-
tory language referring to dangerousness and persons with
severe personality disorders meant to include persons with
antisocial personality disorders who have committed violent
acts against other persons.”). On the same day, the court
similarly concluded in State v. Nickell, 302 Or 439, 444,
730 P2d 1246 (1986), that “chronic paranoid schizophre-
nia superimposed over an antisocial personality disorder
amounts to a severe personality disorder.” (Internal quota-
tion marks omitted.)
Several decades later, in Bell v. Board of Parole, 283
Or App 711, 391 P3d 907, rev den, 361 Or 645 (2017), we con-
sidered the relationship between the sentencing court’s orig-
inal decision to sentence a person as a dangerous offender
and the determination that the Board of Parole and Post-
Prison Supervision must make under ORS 144.228 (1985)4
4
ORS 144.228 (1985), which we construed in Bell, is materially identical to
ORS 144.228 (1987), the version of the statute that we understand the board to
have applied in this case. As we noted in Bell, in 1993, the legislature amended
ORS 144.228 to remove the language regarding “the condition that made the
prisoner dangerous” being “absent or in remission.” 283 Or App at 712 n 2 (citing
Or Laws 1993, ch 334, § 3).
Cite as 327 Or App 332 (2023) 337
as to whether “the condition which made the prisoner dan-
gerous” is now “absent or in remission,” such that the person
should be considered for parole.
We agreed with the parties that “the condition
which made the prisoner dangerous” refers to the sentenc-
ing court’s finding under ORS 161.725 that the person suf-
fers “from a severe personality disorder indicating a propen-
sity toward criminal activity.” Id. at 712, 717-18. We also
recognized Huntley’s construction of ORS 161.725 as specif-
ically requiring a propensity toward “ ‘dangerous criminal
activity.’ ” Id. at 713 (quoting Huntley, 302 Or at 430 (empha-
sis in Huntley and Bell)). We then proceeded to address the
disputed issue, which was whether the board’s order was
supported by substantial evidence, particularly given dif-
ferences between a 1986 psychiatric report and a 2013 psy-
chological evaluation. Id. at 717. In concluding that it was,
we explained that a petitioner’s dangerous condition (the
condition of having a severe personality disorder indicating
a propensity toward dangerous criminal activity) may per-
sist, even if a particular “diagnosis” has changed or “specific
symptoms or traits present at the time of sentencing” are no
longer present. Id. at 719-20.
The upshot of Huntley and Bell together—as rele-
vant here—is that, to have sentenced a person as a danger-
ous offender under ORS 161.725 (1987), the sentencing court
must have found that the person suffers from a severe per-
sonality disorder indicating a propensity toward continu-
ing dangerous criminal activity and that, to grant parole
consideration under ORS 144.228 (1987), the board must
find that the person’s severe personality disorder indicating
a propensity toward continuing dangerous criminal activ-
ity is absent or in remission. As to the latter, the board’s
evaluation of whether a person continues to suffer from the
qualifying condition does not depend upon the persistence
of the specific symptoms or traits present at the time of
sentencing.
We most recently applied that standard in Guzek
v. Board of Parole, 325 Or App 795, 530 P3d 510 (2023), in
which we affirmed an order deferring parole consideration.
In that case, the petitioner contended that the board had
338 Person v. Board of Parole
applied the wrong legal standard, pointing to the board’s
finding that he was predisposed “to the commission of any
crime to the degree rendering [him] a danger to the health
or safety of others.” Id. at 803. We rejected the petition-
er’s argument, which depended on taking the words “any
crime” out of context, and we concluded that the board in
fact applied the correct legal standard. Id. at 804. That is,
we understood the board to have found in substance that
the petitioner was predisposed to “dangerous criminal
activity,” as required under Huntley and Bell, even though
it did not use those exact words. Id. at 804-05. We also con-
cluded that the board’s findings were supported by substan-
tial evidence and that its order showed substantial reason.
Id. at 803.
We now turn to the specific facts of this case. The
board found that petitioner “has a mental or emotional dis-
turbance, deficiency, condition, or disorder predisposing
[him] to the commission of any crime to the degree render-
ing [him] a danger to the health or safety of others; therefore
the condition which made [him] dangerous is not in remis-
sion and [he] does continue to remain a danger.”5 On that
basis, the board deferred parole consideration for 24 months
to September 27, 2022. The board described in some detail
the “factors” and evidence that it considered in reaching its
decision, including a psychologist’s report based on a psycho-
logical evaluation of petitioner completed in February 2020,
wherein the psychologist opined that petitioner has anti-
social personality disorder with narcissistic features and
noted a high level of psychopathy; petitioner’s testimony at
the April 2020 board hearing; petitioner’s disciplinary his-
tory; and petitioner’s lack of a written release/parole plan.
Petitioner challenges four aspects of the board’s
order: (1) the board’s reliance on its finding that petitioner
has a “mental or emotional disturbance, deficiency, condi-
tion, or disorder,” when the legal standard requires a severe
personality disorder; (2) the board’s reliance on its finding
5
That statement appears in the board action form. The board made a very
similar statement in its administrative review response. Those documents
together make up the final order on review. Jenkins v. Board of Parole, 356 Or
186, 207, 335 P3d 828 (2014).
Cite as 327 Or App 332 (2023) 339
that petitioner is predisposed “to the commission of any
crime to the degree rendering [him] a danger to the health
or safety of others[,]” when the legal standard requires a pro-
pensity toward dangerous criminal activity; (3) the board’s
failure to address whether petitioner could be adequately
supervised in the community; and (4) the board’s adoption of
the psychologist’s findings, rather than expressing its rea-
soning in its own words.
We review the board’s order “for legal error, substan-
tial evidence, and substantial reason.” Bell, 283 Or App at
713; see also Jenkins v. Board of Parole, 356 Or 186, 213-14,
335 P3d 828 (2014) (board orders must “satisfy the substan-
tial reason requirement that this court has held is implied
in the substantial evidence standard of review to which the
board’s orders are subject under ORS 183.482(8)(c)”); ORS
144.335(3) (“The Court of Appeals may affirm, reverse or
remand [a parole board order] on the same basis as provided
in ORS 183.482(8).”); ORS 183.482(8)(c) (providing for sub-
stantial evidence review).
Here, petitioner contends that the board applied
the wrong legal standard and, thus, both committed legal
error and produced an order that lacks substantial reason,
when it relied on a finding that petitioner has a “mental or
emotional disturbance, deficiency, condition, or disorder,”
rather than a “severe personality disorder,” to conclude that
he remains dangerous. See Jenkins, 356 Or at 200 (explain-
ing that “substantial reason” requires the board to explain
the connection between the facts as found and the result
reached). The board responds to that argument only briefly,
asserting that having a severe personality disorder was
the legal standard applicable to the sentencing court’s ini-
tial determination that petitioner is a dangerous offender,
whereas ORS 144.228 governs the board’s parole consider-
ation process.6
6
To the extent that the board means to suggest that whether a person has a
“severe personality disorder” is irrelevant after initial sentencing, that position
is contrary to Bell, which recognizes that the board’s task in deciding whether to
grant parole consideration under ORS 144.228 (1987) is to determine whether a
petitioner’s condition of having a severe personality disorder indicating a propen-
sity toward continuing dangerous activity is absent or in remission. Conversely, if
the board means only that it need not affirmatively find the presence of a severe
340 Person v. Board of Parole
We agree with petitioner that the board’s order
lacks substantial reason. As noted above, the board found
that petitioner has a “mental or emotional disturbance, defi-
ciency, condition, or disorder” that predisposes him to cer-
tain crimes, and it “therefore” concluded that his dangerous
condition is not absent or in remission, such that parole may
be deferred under ORS 144.228 (1987). However, as previ-
ously described, under Huntley and Bell, the “condition” rele-
vant to dangerousness is the defendant’s “severe personality
disorder indicating a propensity toward continuing danger-
ous criminal activity.” Huntley, 302 Or at 430; Bell, 283 Or
App at 713 (same). The outer limits of what constitutes a
“severe personality disorder” are not well delineated, but a
“mental or emotional disturbance, deficiency, condition, or
disorder” would appear to encompass a broader universe of
conditions than a “severe personality disorder” as described
in Huntley. See, e.g., Huntley, 302 Or at 431-34 (describing
the diagnostic criteria for “antisocial personality disorder,”
which include that “[a]ntisocial behavior is not due to either
Severe Mental Retardation, Schizophrenia or manic epi-
sodes,” and explaining that “[t]he essence of dangerousness
appears to be a paucity of feeling concern for others” (inter-
nal quotation marks omitted)).
Because the order fails to adequately explain how
the board’s finding leads to its legal conclusion, the order
lacks substantial reason. In so concluding, we emphasize that
the issue before us is not whether the evidence that the board
considered (as previously described) would support a differ-
ent finding that aligns with the legal standard.7 It is for the
board to decide on remand how to craft an order that demon-
strates substantial reason under the applicable standard.
Reversed and remanded.
personality disorder to defer parole consideration, given the allocation of the bur-
den of persuasion under ORS 144.228, that is certainly true, but it ignores the
board’s findings in this case and fails to engage with petitioner’s argument.
7
Notably, the board does not contend that its finding that petitioner has “a
mental or emotional disturbance, deficiency, condition, or disorder” should be
understood as a finding that petitioner continues to have a severe personality
disorder predisposing him to dangerous crimes. We find it difficult to reconcile
the dissent’s generous view of the board’s order with the position actually taken
by the board on judicial review.
Cite as 327 Or App 332 (2023) 341
MOONEY, J., dissenting.
The board’s decision in this case is governed by
ORS 144.228 as it existed in 1987.1 That statute requires
the board to set a release date for any person who was origi-
nally sentenced as a dangerous offender under ORS 161.725
when the board is able to affirmatively find that the “the
condition which made the prisoner dangerous is absent or in
remission.” ORS 144.228(1)(b). In the absence of that affir-
mative finding, ORS 144.228 does not authorize the board to
set a release date. Unless and until it can make the findings
required by ORS 144.228, the board’s statutorily defined
task is to set another review hearing. The record and the
final order2 provide sufficient evidence, supported by suf-
ficient reason, in support of the board’s decision to defer
parole consideration and to set another review hearing for
that purpose.
The majority’s discussion of State v. Huntley, 302
Or 418, 730 P2d 1234 (1986), is not necessary given that
this case is about the board’s parole consideration hearing.
It is not about the sentencing court’s decision to sentence
defendant as a dangerous offender in the first place. We
are conducting judicial review of the parole board’s decision
under ORS 144.228. The question for the parole board was
whether the condition that made petitioner dangerous when
he was sentenced as a dangerous offender was either absent
or in remission at the time of the parole consideration hear-
ing. The scope of that question was clarified in Bell v. Board
of Parole, 283 Or App 711, 391 P3d 907, rev den, 361 Or
645 (2017), where we held that the board’s question under
ORS 144.228 was not strictly limited to “the condition” found
at the original sentencing hearing. Huntley “did not change
the standard for the board to follow, in parole consideration
hearings under ORS 144.228.” Guzek v. Board of Parole, 325
Or App 795, 804, 530 P3d 510 (2023). Neither did Bell.
The board is required to determine whether any
condition that would qualify the petitioner as dangerous
1
All references to ORS 144.228 are to the 1987 version.
2
The final order consists of both the Board Action Form (BAF) and the
Administrative Review Response (ARR). Jenkins v. Board of Parole, 356 Or 186,
206-07, 335 P3d 828 (2014).
342 Person v. Board of Parole
under ORS 161.725 is present at the time of the parole con-
sideration hearing. Bell makes clear that the board’s obliga-
tion is to broadly consider those conditions that might make
the petitioner dangerous, even if a condition that is pres-
ent may not have been one that the sentencing court relied
upon. The record establishes that the board did that here.
As I understand it, the majority is not suggesting that the
decision to defer consideration of early release on parole is
wrong here, only that the board should have done a better
job of explaining why it reached that conclusion.
But the record, when reviewed in its entirety, sup-
ports the board’s order. The board’s order provides sufficient
explanation of its reliance on the evidence and how it reached
its determination that it could not make the findings neces-
sary to set a release date under ORS 144.228. That statute
provides that the board may set a release date:
“* * * if the condition which made the prisoner dangerous
is absent or in remission. In the event that 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, at which time release on parole shall be
ordered if the prisoner is otherwise eligible under the rules.
In no event shall the prisoner be held beyond the maximum
sentence less good time credits imposed by the court.”
The board was not required to make affirmative findings in
the absence of findings that would require it to set a release
date, and yet it did so here. And it is those findings that the
majority concludes demonstrate the failure of substantial
evidence and reason. I agree that the board’s order is not
artfully written. But in my view, the board identified the
information presented to it and then discussed it in such a
way as to reveal how it weighed that evidence and reached
its decision. The board discussed the evidence of petition-
er’s high to moderate risk for recidivism and future violence,
noted his impulsivity and irresponsibility and his antisocial
personality disorder diagnosis, and his lack of remorse and
insight into the harm he has caused by his criminal acts. It
tied that evidence to the legal standards it was required to
apply and stated its conclusion. That is enough.
Cite as 327 Or App 332 (2023) 343
While there might be value in sending this back
to the board to improve its language choices and forms, I
think it is safe to assume that the board and its lawyers will
work on those forms, especially given the recent language
issues revealed in Guzek. I would affirm the board’s decision
because its order is basically adequate for the purpose of
setting another parole consideration hearing. I dissent.