Schroeder v. Board of Parole ( 2022 )

360
Submitted November 21, affirmed December 29, 2022, petition for review denied
April 20, 2023 (371 Or 21)
JOHN PAUL SCHROEDER,
Petitioner,
v.
BOARD OF PAROLE
AND POST-PRISON SUPERVISION,
Respondent.
Board of Parole and Post-Prison Supervision
A175521
523 P3d 701
Petitioner seeks judicial review of a final order of the Board of Parole and Post-
Prison Supervision (the board). In that order, which the board issued after an exit
interview, the board deferred petitioner’s parole release date for 24 months; it
found that petitioner suffers from a present severe emotional disturbance (PSED)
that constitutes a danger to the health or safety of the community, so as to per-
mit the deferral of petitioner’s parole release date under ORS 144.125 (1977). On
review, petitioner contends that (1) the board violated his rights under the ex post
facto clauses of the state and federal constitutions when it applied OAR 255-
030-0026—promulgated after his crimes of conviction—to permit two persons
to make statements at his exit interview; (2) the board violated his due-process
rights under the federal constitution when it permitted those persons to make
statements at his exit interview without giving him advance notice; and (3) the
board’s finding that he suffers from a PSED is not supported by substantial rea-
son. Held: It is not inferable that, under these circumstances, OAR 255-030-0026
gives rise to the nonspeculative risk that petitioner’s incarceration will be longer
than it would have been without the rule. Petitioner’s ex post facto challenge fails
for that reason. His due process rights were not violated because the process
afforded by the board is consistent with what the United States Supreme Court
has deemed adequate. Finally, the board’s order supplies a rational connection
between the facts and the legal conclusions it draws from them, satisfying the
standard for substantial reason.
Affirmed.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, Office of Public Defense Services, and David Sherbo-
Huggins, Deputy Public Defender, Office of Public Defense
Services, filed the briefs for petitioner.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Kirsten M. Naito, Assistant Attorney
General, filed the brief for respondent.
Cite as 323 Or App 360 (2022) 361
Before James, Presiding Judge, and Lagesen, Chief Judge,
and Aoyagi, Judge.
LAGESEN, C. J.
Affirmed.
362 Schroeder v. Board of Parole
LAGESEN, C. J.
Petitioner seeks judicial review of a final order of
the Board of Parole and Post-Prison Supervision (the board).
In that order, which the board issued after an exit inter-
view, the board deferred petitioner’s parole release date for
24 months; it found that petitioner suffers from a present
severe emotional disturbance (PSED) that constitutes a
danger to the health or safety of the community, so as to
permit the deferral of petitioner’s parole release date under
ORS 144.125 (1977), amended by Or Laws 1981, ch 426, § 2;
Or Laws 1987, ch 320, § 53; Or Laws 1989, ch 790, § 68;
Or Laws 1993, ch 334, § 1; Or Laws 1999, ch 141, § 1; Or
Laws 2009, ch 660, § 3. On review, petitioner contends that
(1) the board violated his rights under the ex post facto clauses
of the state and federal constitutions when it applied OAR
255-030-0026—promulgated after petitioner committed his
crimes—to permit two persons to make statements at his
exit interview; (2) the board violated his due-process rights
under the federal constitution when it permitted those per-
sons to make statements at his exit interview without giv-
ing him advance notice that they would be speaking; and
(3) the board’s finding that he suffers from a present severe
emotional disturbance is not supported by substantial rea-
son. We affirm.
The facts relevant to the issues before us are not
disputed. In 1981, a jury convicted petitioner of first-degree
robbery, two counts of first-degree rape, and two counts of
first-degree sodomy. The trial court sentenced petitioner
to 20 years’ incarceration on each conviction, all sentenced
to run consecutively, for a total of 100 years’ incarcera-
tion. That term of incarceration was imposed consecutively
to a 40-year term of incarceration imposed in a prior case
based on petitioner’s convictions for similar conduct the
year before. Petitioner’s 1981 convictions were based on a
jury’s finding that petitioner broke into the apartment of
two students at the University of Oregon and then raped
and robbed them. At the time, petitioner was suspected in
numerous similar offenses in Eugene, and had been charged
with some of those offenses. After petitioner was sentenced
to 100 years’ incarceration, the charges in the other cases
were dismissed, in view of the lengthy sentence imposed.
Cite as 323 Or App 360 (2022) 363
In 2020, the board held an exit interview to deter-
mine whether to release petitioner on his projected release
date or whether to defer petitioner’s projected release date.
Before the exit interview, the board obtained a psychological
evaluation of petitioner to assist in its evaluation of him. The
evaluator opined that petitioner has an “[o]ther specified
paraphilic disorder, coercive type,” among other disorders.
She further opined that petitioner’s disorders “predispose
him to the commission of future sexually violent behav-
ior,” and that he “has not fully addressed the issues that
drive his risk for sexual re-offense.” Ultimately, the evalu-
ator concluded that petitioner “represents a moderate risk
of re-offense.” Petitioner obtained his own evaluation with
a different evaluator. At the exit interview, petitioner’s law-
yer represented that that evaluation was “not intended to be
a full psychological evaluation” but was intended, instead,
“to provide some additional context for the board about who
[petitioner] was and what he’s been through.” That evalua-
tor opined that petitioner was at low risk to reoffend because
of his age.
At the exit interview, in accordance with OAR 255-
030-0026(4)(f), which provides that “[t]he board retains the
discretion to allow oral statements at hearings from one or
more persons [not specifically identified in the rule], if the
Board deems the person(s) to have a substantial interest in
the case, or to be able to provide information that may assist
the Board in its deliberations,” the board permitted two
women, C and W, to make statements at the exit interview.
Both women were victims of the sexual assaults underly-
ing some of the charges against petitioner in the cases that
had been dismissed once petitioner received the lengthy sen-
tence. At the exit interview, both described how, in 1980,
when they were 18-year-old students in their first year at the
University of Oregon, petitioner broke into their apartment
and sexually assaulted them, holding them captive for a six-
hour period. The board had not notified petitioner ahead of
the exit interview that the women would make statements.
Following the women’s statements, the board gave
petitioner an opportunity to respond. In response, he denied
being the person who committed the offenses against them.
364 Schroeder v. Board of Parole
At the close of the hearing, the board deferred petitioner’s
release date for two years:
“Based on the doctor’s report and diagnosis coupled
with all the information that the board is considering, the
board concludes that you suffer from a present severe emo-
tional disturbance that constitutes a danger to the health
or safety of the community. The board has considered this
matter under the substantive standard in effect at the
time of the commitment offenses and all other applicable
rules and laws. The board is deferring your release date
24 months and establishing a new projected release date of
December 9, 2022.”
The board memorialized that decision in Board Action Form
(BAF) 7.
Petitioner requested administrative review of BAF 7.
On administrative review he argued, among other things,
that the board’s application of OAR 255-030-0026 to allow
C and W to make statements violated the state and fed-
eral constitutional prohibitions on ex post facto laws, that
allowing C and W to make statements without giving peti-
tioner advance notice violated the Due Process Clause of the
Fourteenth Amendment to the United States Constitution,
and that the board’s finding that petitioner suffers from a
present severe emotional disturbance is not supported by
substantial evidence. In support of his contentions that
allowing C and W to make statements had rendered his
hearing unfair, petitioner submitted documentation from
the investigation of the crime against them and pointed
out inconsistencies between that documentation and their
statements.
On administrative review, the board adhered to its
decision in BAF 7. It explained that, on review, it found
“that its decision to defer your release date for 24 months
was proper and legal.” Addressing petitioner’s arguments
regarding the statements by C and W, the board stated that
“While the Board allowed the victims in your case to make
statements, the Board’s decision rested on the substantial
evidence and reasoning identified in BAF #7.”
Petitioner petitioned for judicial review, as allowed
by ORS 144.335. As noted, he contends that the board’s
Cite as 323 Or App 360 (2022) 365
application of OAR 255-030-0026 to permit C and W to make
statements at his exit interview violated his rights under
the ex post facto clauses of Article I, section 21, of the Oregon
Constitution and Article I, section 10, of the United States
Constitution; that allowing C and W to make statements at
his hearing without giving him advance notice violated his
due process rights under the Fourteenth Amendment; and
that the board’s determination that petitioner has a PSED
that makes him a danger to the health or safety of the com-
munity is not supported by substantial reason. The board,
in response, asserts that it did not rely on the statements by
C and W, making any error in allowing the statements
harmless. The board argues further that the application of
OAR 255-030-0026 to permit the statements by C and W
did not offend the state and federal constitutional prohi-
bitions on ex post facto laws. It contends further that due
process did not require it to notify petitioner that it would
allow C and W to make statements in advance of the hear-
ing. Finally, it argues that substantial evidence supports
the finding that petitioner has a PSED that makes him a
danger to the health or safety of the community.
We review for legal error and substantial evi-
dence (including substantial reason). ORS 144.335(3); ORS
183.482(8); Jenkins v. Board of Parole, 356 Or 186, 205, 335
P3d 828 (2014).
We start with petitioner’s contention that applying
OAR 255-030-0026 to allow C and W to make statements
violated his rights under the ex post facto prohibitions in
the state and federal constitutions. Because any change
in law resulting from the promulgation of that rule is not
substantive but procedural,1 to prevail petitioner must
“demonstrate—through something other than speculation—
that the change in law created a risk that petitioner’s term
of incarceration would be extended beyond what it otherwise
would have been.” Morrison v. Board of Parole, 277 Or App
861, 866, 374 P3d 948, rev den, 360 Or 465 (2016).
1
Although no statute or rule appears to have specifically authorized the
board to permit persons with a substantial interest in a parole proceeding to
make a statement at an exit interview, it is not readily apparent that such a prac-
tice would have been prohibited.
366 Schroeder v. Board of Parole
Petitioner in this case did not make that necessary
showing. As the board points out, we previously rejected
state and federal ex post facto challenges to the statute that
gave representatives of crime victims the right to attend
and testify at parole hearings. Dawson v. Board of Parole,
123 Or App 619, 621-22, 860 P2d 878 (1993). To the extent
our analysis in Dawson is not dispositive of the question in
this case, it is worth observing that the provision of OAR
255-030-0026 under which the board permitted C and W
to make statements is neutral in the sense that it appears
to contemplate statements both by persons supporting a
person’s release on parole, as well as by persons opposing
it, if those persons have an interest in the case or useful
information: “The board retains the discretion to allow oral
statements at hearings from one or more persons [not specif-
ically identified in the rule], if the Board deems the person(s)
to have a substantial interest in the case, or to be able to
provide information that may assist the Board in its deliber-
ations.” Under those circumstances—where the rule would
allow both positive and negative statements—it is not infer-
able that the rule gives rise to the nonspeculative risk that
petitioner’s incarceration will be longer than it would have
been without the rule. Petitioner’s ex post facto challenge
fails for that reason.
Petitioner next argues that his due process rights
under the Fourteenth Amendment were violated when the
board permitted C and W to make statements without giv-
ing him advance notice that the board would permit the
statements. Petitioner argues that, absent advance notice of
the statements, he did not have the meaningful opportunity
to respond to them as required by due process. We disagree.
The Oregon Supreme Court has determined that
Oregon law creates a constitutionally protected liberty inter-
est in parole. Stogsdill v. Board of Parole, 342 Or 332, 337,
154 P3d 91 (2007). That leaves the question of what process
is due. Id. at 336. Relying on United States Supreme Court
precedent, we previously have concluded that, in the context
of an exit interview, the procedures required by due process
are minimal. Swarthout v. Cooke, 562 US 216, 220, 131 S Ct
859, 178 L Ed 2d 732 (2011) (“In the context of parole, we
Cite as 323 Or App 360 (2022) 367
have held that the procedures required are minimal.”);
Rivas v. Board of Parole, 272 Or App 248, 253-54, 356 P3d
83 (2015) (same). Procedures that permit an inmate to be
heard and respond to the evidence against them, and that
provide for a statement of reasons for the denial of parole,
have been deemed constitutionally sufficient. Greenholtz v.
Inmates of Neb. Penal and Correctional Complex, 442 US 1,
16, 99 S Ct 2100, 60 L Ed 2d 668 (1979). Due process does
not require that an inmate be permitted to call or cross-
examine witnesses in an exit interview. Rivas, 272 Or App
at 253-54.
In view of Rivas, Swarthout, and Greenholtz, we are
persuaded that due process did not require the board to give
petitioner advance notice that C and W would make state-
ments in order to safeguard his meaningful opportunity to
respond. Even with advance notice, under Rivas, petitioner
would not have been entitled to cross-examine C and W or
call witnesses to respond to their statements, so the lack
of advance notice did not affect a protected right to call or
cross-examine witnesses. Petitioner was given an oppor-
tunity to respond to, and to deny, their allegations at the
hearing. In addition, on administrative review, the board
permitted petitioner to attach documents in support of his
contention that their allegations were false, providing him
with an additional opportunity to respond to the statements
following a greater period of reflection. Finally, in BAF 7
and its administrative review response, the board supplied
its reasoning for its decision, explaining that the basis for
its deferral was that petitioner currently had a PSED that
rendered him a danger to the health or safety of the com-
munity. That process, as a whole, provided petitioner with
a meaningful opportunity to be heard generally, and about
the statements made by C and W particularly. By provid-
ing a statement of reasons for the decision, the process also
gave petitioner a meaningful opportunity to seek redress
for any alleged errors in the board’s decision-making
process, including any erroneous reliance on the state-
ments by C and W. We therefore conclude that the process
afforded by the board is consistent with what the United
States Supreme Court deemed adequate in Swarthout and
Greenholtz.
368 Schroeder v. Board of Parole
In his final assignment of error, petitioner asserts
that the board’s determination that he suffers from a PSED
is not supported by substantial reason. “[W]hether an agen-
cy’s ultimate conclusions from its findings of fact are sup-
ported by substantial reason turns on whether the agency’s
order supplies a ‘rational connection between the facts and
the legal conclusions it draws from them’ such that the con-
clusions are sufficiently reviewable by an appellate court.”
United Academics of OSU v. OSU, 315 Or App 348, 355-56,
502 P3d 254 (2021). Here, having reviewed the board’s order,
we are convinced that its explanation of its decision satisfies
that standard.
Affirmed.