Atkinson v. Board of Parole ( 2022 )

673
Argued and submitted June 25, 2020, petition for judicial review dismissed as
moot May 18, petition for review denied September 16, 2022 (370 Or 214)
DAVID LEE ATKINSON,
Petitioner,
v.
BOARD OF PAROLE AND
POST-PRISON SUPERVISION,
Respondent.
Board of Parole and Post-Prison Supervision
A166292
511 P3d 408
In this judicial review proceeding, petitioner challenges the Board of Parole
and Post-Prison Supervision’s (board’s) deferral of his parole release date.
Petitioner argues that the board erred in concluding, under ORS 144.125(3), that
he had a present severe emotional disturbance (PSED) that constituted a danger
to the health or safety of the community. The board responds that it correctly
deferred petitioner’s release. While the case was pending, petitioner was released
from custody. The board then filed a motion to dismiss the case on the ground
that it was moot. On review, petitioner contends that dismissing the case would
permit the board to unlawfully extend his period of active supervision from
12 months to 36 months without holding a parole revocation hearing. Held: The
board demonstrated that a reversal of its decision to defer petitioner’s release on
parole would not have the practical effect of changing petitioner’s parole status
from active to inactive at an earlier date. To avoid mootness, an asserted collat-
eral consequence must have a probability of occurring; a possibility is not enough.
Here, the statutes and rules on which petitioner relied do not, by themselves,
establish a probability that the board would have failed to initiate a revocation
proceeding after petitioner’s release and before his period of active supervision
otherwise would have ended.
Petition for judicial review dismissed as moot.
Erik Blumenthal, Deputy Public Defender, argued the
cause for petitioner. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Christopher Page, Assistant Attorney General, argued
the cause for respondent. On the brief were Ellen F.
Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Julia Glick.
674 Atkinson v. Board of Parole
Before Ortega, Presiding Judge, and Aoyagi, Judge, and
Brewer, Senior Judge.*
BREWER, S. J.
Petition for judicial review dismissed as moot.
______________
* Brewer, S. J., vice Shorr, J.
Cite as 319 Or App 673 (2022) 675
BREWER, S. J.
A jury convicted petitioner of aggravated murder,
among other charges, committed in 1984, and he was sen-
tenced to life in prison with the possibility of parole after
20 years. While incarcerated, petitioner committed further
crimes in 1988, and he received additional indeterminate
consecutive sentences for those crimes.
In 2008, the Board of Parole and Post-Prison Super-
vision (board) determined that petitioner had met his bur-
den of demonstrating that he was likely to be rehabilitated
within a reasonable period of time, and it initially set peti-
tioner’s projected parole release date for June 28, 2013. The
board held petitioner’s first exit interview in 2012. Following
that interview, the board postponed petitioner’s projected
release date for two years pursuant to ORS 144.125(3). The
board held another exit interview in 2014 and again deferred
his projected release date for two years. In March 2017, the
board conducted a third exit interview with petitioner and
again postponed petitioner’s projected release date for two
years, setting a new projected release date for June 28, 2019.
In this judicial review proceeding, petitioner chal-
lenges the board’s 2017 deferral of his parole release date.
Petitioner argues that the board erred in concluding, under
ORS 144.125(3), that he had a present severe emotional dis-
turbance (PSED) that constituted a danger to the health
or safety of the community. The board filed an answering
brief arguing that the board correctly deferred petitioner’s
release. While a reply brief was pending, petitioner was
released from custody on June 28, 2019, with an active
supervision review date of June 27, 2022.
The board then filed a motion to dismiss this case
on the ground that it was moot as a result of petitioner’s
release. The board argued that no collateral consequences
prevent this case from being moot. The board predicted that
petitioner might argue that, had he been released earlier, he
would have been eligible sooner for a possible change in his
parole supervision status from active to inactive. The board
argued that we previously have rejected that argument,
holding that “the ‘mere possibility’ that the board might
have changed an inmate from active to inactive supervision
676 Atkinson v. Board of Parole
status and thus relieved the inmate from several conditions
of parole” earlier does not prevent an appeal from becom-
ing moot when the appellant is released from prison. See
Miller v. Board of Parole, 275 Or App 844, 852, 365 P3d 1136
(2015) (“mere possibility that the board might have earlier
discharged [petitioner] from parole does not prevent [peti-
tioner’s] claim from becoming moot by reason of his release
from prison”); see also Green v. Baldwin, 204 Or App 351,
357, 129 P3d 734 (2006) (same).
In response to the board’s motion to dismiss, peti-
tioner conceded that this case is very similar to Miller. He
nonetheless asserted that the case is not moot. He contended
that dismissing it would permit the board to extend his
period of active supervision for two years beyond what the
law allows without holding a revocation hearing at which
the board must find a parole violation. Petitioner’s argu-
ment was based on the interaction among certain statutes
and administrative rules in effect when he committed his
1984 offenses.1
In particular, petitioner noted that former ORS
144.310(2) (1982), repealed by Or Laws 1993, ch 680, § 7,
provided:
“(2) A paroled prisoner shall be subject to active parole
supervision during the first six months of the period of
parole. The board may require a more extended period of
active supervision if, in a manner provided by rule, it finds
that a six-month period of supervision is incompatible with
the welfare of the parolee or of society. * * *
“(3) The board may extend or renew the period of
active parole supervision or delay discharge of a parolee if
it finds, in the manner provided in ORS 144.343, that the
parolee has violated the conditions of terms of parole.”
When petitioner committed his aggravated murder
offense, former OAR 255-90-002 (Aug 1982) provided:
“Pursuant to ORS 144.310 the Board shall establish a
discharge date from active supervised parole. The period of
1
The board makes no argument in this case that the statutes and rules in
effect when petitioner committed his 1988 offenses govern petitioner’s parole.
Cite as 319 Or App 673 (2022) 677
supervised parole shall be shown in the guideline matrix,
Exhibit H-1, unless the Board provides written reasons
for an extended supervision period. Extended supervision
periods shall not exceed thirty-six (36) months.”
Exhibit H-1, in turn, provided for one year of active
supervision prior to discharge. “The guidelines set forth in
Exhibit H-1 shall govern the establishment of discharge
dates. * * * For discharge to be effective, the parolee must
display acceptable parole performance[.]” Former OAR 250-
90-003 (Aug 1982). Finally, former OAR 255-90-015 (Aug
1982), set out the hearing rights contained in subsection (3)
of former ORS 144.310 (1982):
“(1) In addition[ ] to the power of the Board to revoke
parole, it may extend a discharge date one time for six
months without a hearing and thereafter up to a one year
period if the Board finds, after a hearing pursuant to
Division 75,[2] that the parolee has violated the conditions
of parole.
“(2) Nothing contained in this rule shall be interpreted
to preclude more than one extension of a discharge date by
the Board. However, no extension of parole shall exceed the
maximum term of sentence imposed by the court.”
Based on those statutes and rules, petitioner’s thresh-
old argument against mootness was that the board lacked
authority to impose an initial 36-month period of active super-
vision in its 2019 release order without holding a parole revo-
cation hearing, and that order therefore should have provided
for an initial one-year period of active supervision.3 Petitioner
asserted that, if the 2019 order had been legally correct, he
would have been discharged from active supervision no later
than December 27, 2020 (that is, 18 months after his release
2
Division 75 set out the procedures for holding revocation hearings upon
alleged violations of parole.
3
In the heading to his response to the board’s motion to dismiss, petitioner
argued:
“Petitioner’s case is not moot because a ruling on petitioner’s favor would
require the board to hold a revocation hearing before imposing the current
period of active supervision.”
(Emphasis added.)
678 Atkinson v. Board of Parole
on parole), rather than December 27, 2022 (that is, 42 months
after his release).4
As a fallback, petitioner argued:
“However, as petitioner argues on appeal, the board
lacked substantial evidence to defer petitioner’s release
in March 2017. Because the board lacked substantial evi-
dence, the relevant rules and statutes required the board
to release petitioner to parole on his then-active release
date of June 28, 2017. Rec 196. See Jones v. [Board of
Parole], 283 Or App 650, 659-61, 391 P3d 831, rev den, 361
Or 543 (2017) (explaining that release is mandatory unless
the board makes one of the findings required by statute).
At that point, petitioner’s 42-month clock would begin to
run, and the board could not extend his active supervision
beyond December 28, 2020, without holding a revocation
hearing at and finding a parole violation.”
Petitioner argued that, in contrast to the peti-
tioner in Miller, he did not contest the board’s authority over
him for the duration of his life. Petitioner contended that
his case is distinguishable from Miller because that case
did not address a petitioner’s right to a parole revocation
hearing under former OAR 255-90-015 (1982). Petitioner
argued that the cases relied upon in Miller involved differ-
ent administrative rules that did not provide for the right
to a parole revocation hearing. See Green v. Baldwin, 204
Or App 351, 129 P3d 734 (2006) (involving the board’s 1985
rules); Dunmire v. Board of Parole, 262 Or App 593, 325 P3d
832 (2014) (involving an offense committed in 1986, after
the board had amended former OAR 255-90-015 (1982) and
deleted subsection (1) providing for a right to a revocation
hearing and violation finding). Petitioner therefore reasoned
that, despite the decisions in Miller, Green, and Dunmire,
4
Petitioner further argued:
“Assuming, in arguendo, the board validly imposed the 36-month
extended period of active supervision, once that 36-month period is over,
the board could not extend petitioner’s period of active supervision longer
than six additional months unless it held a revocation hearing at which it
found that petitioner violated parole. Thus, adding those terms together, the
board could not extend petitioner’s period of active supervision beyond 42
months without holding a revocation hearing at which the board would need
to find that petitioner violated his parole. If petitioner complies with parole,
he would be entitled to termination of active supervision no later than 42
months after June 28, 2019, or December 28, 2022.”
Cite as 319 Or App 673 (2022) 679
this case should not be dismissed as moot because dismissal
“would not create the mere possibility that petitioner could
be deprived of his right to a revocation hearing, it guaran-
tees it.” (Emphasis in original.) According to petitioner, if
he complies with parole, he will currently be entitled to ter-
mination of active supervision no later than December 28,
2022. However, he asserts, if he prevails on judicial review,
the board would not have been permitted to extend his
active supervised parole beyond December 28, 2020, without
holding a revocation hearing at which it must find a parole
violation.
The Appellate Commissioner denied the board’s
motion to dismiss, reasoning that:
“Miller does not address the right to a revocation hear-
ing at which the board must find a parole violation before
extending the active period of parole supervision. Nor did
the board, in response to petitioner’s identification of collat-
eral consequences—that his period of active supervision is
extended two years beyond what it could be without such
a hearing, if he prevails on judicial review—demonstrate
that that asserted consequence ‘either does not exist or is
legally insufficient.’ [State v. K. G. B., 362 Or 777, 786, 416
P3d 291 (2018)]. Thus, the state has not met its burden. See
State v. Stroud, 293 Or App 314, 316-18, 428 P3d 949 (2018)
(state did not meet its burden of demonstrating that appeal
was moot).”
The Commissioner gave the board leave to raise the issue
of mootness to the panel that considered this case on the
merits. The board did not avail itself of that opportunity.
However, under our independent authority to consider mat-
ters of justiciability, for the following reasons we neverthe-
less elect to address the issue of mootness here.
As we recently explained:
“ ‘Determining mootness is one part of the broader ques-
tion of whether a justiciable controversy exists.’ [Brumnett
v. PSRB, 315 Or 402, 405, 848 P2d 1194 (1993).] ‘One ques-
tion in that analysis, * * * the question at issue here, is
whether the court’s decision in the matter will have some
practical effect on the rights of the parties.’ Dept. of Human
Services v. A. B., 362 Or 412, 419, 412 P3d 1169 (2018)
(internal quotation marks omitted). ‘The burden rests with
680 Atkinson v. Board of Parole
the party moving for dismissal to establish that a case is
moot.’ State v. K. J. B., 362 Or 777, 785, 416 P3d 291 (2018).
“ ‘The moving party’s burden includes the burden of
establishing that any collateral consequences either do
not exist or are legally insufficient. That does not mean
that the moving party is required to imagine all possi-
ble collateral consequences and then disprove each of
them. Rather, when the moving party takes the posi-
tion that a case has become moot, the responding party
must identify any collateral consequences that he or
she contends has the effect of producing the required
practical effects of a judicial decision. At that point, the
moving party must demonstrate that any of those iden-
tified collateral consequences either does not exist or is
legally insufficient.’
“Id. at 786 (internal citations omitted). ‘It will be up to the
appellate court to determine the existence and significance
of those effects or consequences and to decide, as a pru-
dential matter, whether an appeal is moot.’ A. B., 362 Or
at 426.”
Smith v. Board of Parole, 305 Or App 773, 776, 472 P3d 805,
rev den, 367 Or 387 (2020).
As in Smith, a case decided after the Commissioner
entered her order:
“[This is not] a case where the board has failed to demon-
strate that the effects or consequences that petitioner iden-
tified are either legally insufficient or factually incorrect.
Here, in its motion to dismiss, the board argued that ‘this
court’s case law makes clear that the potential reversal of
the board’s deferral decision does not give rise to collateral
consequences for petitioner’s current parole preventing dis-
missal of this moot case.’ In particular, the board asserted
that, under the circumstances of this case, the mere pos-
sibility that petitioner’s parole status could have changed
from active to inactive at an earlier date is not a legally suf-
ficient collateral consequence that would prevent dismissal
of this case.”
Id. at 781.
In this case, the board correctly anticipated peti-
tioner’s collateral consequences argument about a change
from active to inactive supervision in its motion to dismiss,
Cite as 319 Or App 673 (2022) 681
even though the board did not specifically address peti-
tioner’s rule-based attempt to distinguish Miller. Because,
as explained below, the board’s overarching argument was
sufficient to refute petitioner’s counterargument, the board
met its applicable burden. Moreover, the case law does not
indicate that courts should consider the issue of mootness
only if a party renews before the merits panel a prior motion
to dismiss a case as moot that was denied by the Appellate
Commissioner. For example, in State v. Gentle, 299 Or App
508, 450 P3d 507 (2019), and Johnson v. Premo, 302 Or App
578, 461 P3d 985, rev den, 366 Or 569 (2020), we identified
the issue and subsequently dismissed those cases as moot.
Initially, we note that petitioner’s threshold argu-
ment against mootness—that the board’s 2019 order was
legally incorrect because the board only had authority to ini-
tially impose a 12-month period of active supervision after
his release on parole, not a 36-month period—is misplaced
in this context. The problem is that petitioner did not chal-
lenge the imposition of the 36-month period of active super-
vision on the merits on review in this case,5 but only raised
the issue in his response to the board’s mootness motion.
In making his argument against mootness without having
challenged on its merits the active supervision period set
out in the 2019 order in the present case, petitioner must
take the 2019 order as he finds it.6
That problem aside, we recognize that petitioner’s
challenge on the merits on review is to the board’s 2017
order deferring his release on parole, and his fallback argu-
ment against mootness is that, if he had been released then,
any extension of his initial period of active supervision sta-
tus beyond (at the latest) December 28, 2020 would have
5
Given that the board has not challenged that aspect of petitioner’s argu-
ment against mootness, we assume for the sake of argument that such a chal-
lenge on the merits might have been permissible. We note, however, that peti-
tioner did, in fact, petition for judicial review of the 2019 order, and this court
dismissed that petition as moot. Atkinson v. Board of Parole, A171896.
6
Cf. Haskins v. Palmateer, 186 Or App 159, 166-68, 63 P3d 31, rev den, 335
Or 510 (2003) (holding, in habeas corpus case involving same board rules, that
even if board “may have failed to follow its own procedural rules in petitioner’s
case[,] * * * [n]othing in the applicable rules or statutes affirmatively entitled
petitioner to discharge from parole merely because of such a failure on the part
of the board”).
682 Atkinson v. Board of Parole
required a parole revocation hearing and a determination
that petitioner violated parole. We conclude that the distinc-
tion that petitioner relies on does not ultimately make a dif-
ference in the mootness analysis.
The controlling decisions all indicate that an earlier
commencement of active parole supervision does not ensure
an earlier discharge from parole. See, e.g., Miller, 275 Or
App at 850. Underlying those decisions is the principle that,
to avoid mootness, an asserted collateral consequence must
have a “probability” of occurring; a possibility or speculation
is not enough. That remains true even assuming everything
petitioner says about how the board rules in effect when he
committed his offenses would have applied to him is correct.
As pertinent here, those rules are not materially different
from the rules at issue in prior decisions holding that cases
were moot in similar circumstances. See, e.g., former OAR
255-90-015(2) (Aug 1982) (“Nothing contained in this rule
shall be interpreted to preclude more than one extension
of a discharge date by the Board. However, no extension of
parole shall exceed the maximum term of sentence imposed
by the court.”). That is, the thrust of those prior decisions
did not hinge on the mechanics or proof requirements for
extending periods of active supervision under applicable
board rules but, rather, on the core principle that, for inde-
terminate sentences, the parole period is not governed by
when a person is released from prison, but, rather by when
the indeterminate sentence expires. See, e.g., Miller, 275
Or App at 850 (“We have repeatedly held that the board’s
authority over a parolee like petitioner [who is serving an
indeterminate sentence] extends for the remainder of his
sentence * * * unless and until the board affirmatively dis-
charges him from parole supervision.”); see also Smith, 305
Or App at 777 (same).
True, our decisions in Miller, Smith, and other cases
have focused on the effect of a release decision on the inten-
sity of a parolee’s supervision status (active versus inactive)
in considering whether a qualifying collateral consequence
existed that would defeat mootness. Here, however—
analogously to those cases—a reversal of the board’s 2017
decision to defer petitioner’s release on parole would not
Cite as 319 Or App 673 (2022) 683
have the practical effect of changing petitioner’s parole
status from active to inactive at an earlier date. That is so
because the statutes and rules on which petitioner relies do
not, by themselves, establish a probability that the board
would have failed to initiate a revocation proceeding after
petitioner’s release and before his period of active super-
vision otherwise would have ended, much less what the
outcome of such a hearing would have been. As in Smith,
“the law applicable to petitioner’s sentence and the order of
release allow for petitioner’s active supervision to continue
to the sentence expiration date, and the law does not require
the board to change petitioner’s parole status from active to
inactive based on petitioner’s initial parole date alone.” 305
Or App at 780. Despite the procedural differences that peti-
tioner touts for the rules in effect at the time of his offenses,
there remains only a possibility that petitioner’s parole sta-
tus might have changed from active to inactive status at an
earlier date, and that is not sufficient. See Smith, 305 Or
App at 781 (“the mere possibility that petitioner’s parole sta-
tus could have changed from active to inactive at an earlier
date is not a legally sufficient collateral consequence”).
Because the board demonstrated that a reversal of
its 2017 decision to defer petitioner’s release on parole would
not have the practical effect of changing petitioner’s parole
status from active to inactive at an earlier date, the board
met its burden to demonstrate that petitioner’s identified
collateral consequence is legally insufficient and that the
case is, therefore, moot.
Petition for judicial review dismissed as moot.