Guzek v. Board of Parole , 325 Or. App. 795 ( 2023 )

795
Argued and submitted February 2, affirmed May 10, 2023
JOEL C. GUZEK,
Petitioner,
v.
BOARD OF PAROLE AND
POST-PRISON SUPERVISION,
Respondent.
Board of Parole and Post-Prison Supervision
A176059
530 P3d 510
Petitioner was convicted of various crimes that he committed in 1986 and
1987, and he was sentenced as a dangerous offender under the then-current ver-
sion of ORS 161.725. He petitioned the Court of Appeals for review of the parole
board’s order denying his request for a release date and instead resetting the
matter for another parole consideration hearing. Petitioner argues that the deci-
sion was not supported by substantial evidence or reason, and that it resulted
from application of the wrong legal standard. Held: The board considered all the
information presented to it, including, among other things, a 36-page psycho-
logical evaluation and report. It identified mental health diagnoses, traits, and
symptoms; risk assessment scores; and other information that it deemed per-
tinent to the question before it. The board then explained why it could not, on
the record before it, find that the condition that made petitioner dangerous was
absent or in remission. In the absence of such a finding, the board was without
authority to set a release date. It did not err.
Affirmed.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Peter G. Klym, Deputy Public Defender, Office
of Public Defense Services, filed the briefs for petitioner.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jeff J. Payne, Assistant Attorney
General, filed the brief for respondent.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
MOONEY, J.
Affirmed.
796 Guzek v. Board of Parole
MOONEY, J.
Petitioner was convicted of various crimes that he
committed in 1986 and 1987. He was sentenced as a dan-
gerous offender under ORS 161.7251. Petitioner has had a
number of parole consideration hearings conducted by the
Board of Parole and Post-Prison Supervision (the board)
under ORS 144.228, but it is the most recent hearing and
the board’s decision to defer his parole consideration date
for thirty-six months that is before us on review. Petitioner
assigns error to the board’s denial of his “release,” arguing
that its decision is not supported by substantial evidence or
reason, and that it resulted from application of an incorrect
legal standard. Petitioner argues that the lack of sufficient
evidence and reason and the application of the wrong legal
standard resulted in an unfair hearing. We conclude, for the
following reasons, that the board did not err. We affirm.
We review a final order of the board for legal error,
substantial evidence, and substantial reason. Jenkins v.
Board of Parole, 356 Or 186, 205, 335 P3d 828 (2014). The
final order here consists collectively of Board Action Form
#14 (BAF) and Administrative Review Response #8 (ARR).
Id. at 206-07. The substantial reason requirement flows log-
ically from, and is necessarily a part of, the substantial evi-
dence standard, requiring the board to “connect the facts of
the case and the result reached.” Id. at 214; see also Castro v.
Board of Parole, 232 Or App 75, 83, 220 P3d 772 (2009). We
review for legal error whether the board’s final order violates
1
The versions of ORS 161.725 and ORS 161.735 that were applied by the
court at the time petitioner was sentenced as a dangerous offender were those
that were in effect when the crimes for which he was convicted actually occurred.
The version of ORS 144.228 that was applied by the board at the parole consid-
eration hearing was the version that was in effect when petitioner committed
the crimes for which he was sentenced as a dangerous offender. Those statutes
have since been amended. It is the 1985 version of those statutes that apply to
petitioner and all citations to those statutes in this opinion are to the statutes as
they existed in 1985. We list the statutes and their subsequent history, below:
ORS 161.725 (1985), 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;
ORS 161.735 (1985), amended by Or Laws 1987, ch 248, § 1; Or Laws 1999,
ch 163, § 9; Or Laws 2005, ch 463, §§ 10, 15; Or Laws 2007, ch 16, § 5;
ORS 144.228 (1985), 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.
Cite as 325 Or App 795 (2023) 797
petitioner’s due process rights. Noble v. Board of Parole, 327
Or 485, 498, 964 P2d 990 (1998).
Petitioner was convicted of crimes that fit into three
basic categories: (1) sexual offenses against his daughter,
including rape, sodomy, and incest; (2) first-degree man-
slaughter and various assault offenses related to a car crash
in which petitioner’s son was killed, and others were injured,
because petitioner had been driving while under the influ-
ence of alcohol (MVA); and (3) various property offenses.
He was sentenced as a dangerous offender under the then-
existing versions of ORS 161.7252 and ORS 161.7353 on the
sexual offense convictions and on a first-degree burglary
conviction. The sentences for the manslaughter and assault
convictions that arose from the MVA were imposed to run
consecutively to the dangerous offender sentences.
The board conducted parole consideration hearings
a number of times beginning in 2003, concluding each time
that the condition that made petitioner dangerous under
ORS 161.725 at the time of sentencing was not in remis-
sion, that he continued to be dangerous, and deferring con-
sideration of a release date to a future hearing. The board
held another parole consideration hearing in January 2021,
after which it again found that defendant continued to be
2
ORS 161.725(1) allows the court to sentence a defendant as a dangerous
offender after finding that:
“The defendant is being sentenced for a Class A felony, and * * * is suffering
from a severe personality disorder indicating a propensity toward crimes
that seriously endanger the life or safety of another.”
3
ORS 161.735 provides, as pertinent:
“(1) * * * if, in the opinion of the court, there is reason to believe that
the defendant falls within ORS 161.725, the court shall order a presentence
investigation and an examination by a psychiatrist or psychologist.
“* * * * *
“(3) * * * Each psychiatrist and psychologist appointed to examine defen-
dant under this section shall file with the court a written report of findings
and conclusions, including an evaluation of whether the defendant is suffer-
ing from a severe personality disorder indicating a propensity toward crimi-
nal activity.
“* * * * *
“(6) If, after considering the presentence report, the examination reports
and the evidence in the case or on the presentence hearing, the court finds
that the defendant comes within ORS 161.725, the court may sentence the
defendant as a dangerous offender.”
798 Guzek v. Board of Parole
dangerous and deferred consideration of a release date for
another three years. It is the January 2021 finding and the
related ruling that is now before us.
We begin with a discussion of the basic statutory
framework that applies to persons sentenced as dangerous
offenders. In particular, we review the statutory provisions
that apply to this case, which include those in effect at the
time when the crimes of conviction occurred. Washington v.
Board of Parole, 294 Or App 497, 498, 432 P3d 372 (2018);
Edwards v. Board of Parole, 272 Or App 183, 184 n 1, 355
P3d 166, rev den, 358 Or 70 (2015).4 The original court deci-
sion to sentence petitioner as a dangerous offender was
made for crimes that occurred in 1986, and as already
mentioned, that decision was therefore made according to
versions of ORS 161.725 and ORS 161.735 that have since
been amended. At that time, defendants who qualified as
dangerous offenders were subject to enhanced sentences
when extended prison time was needed to protect the public
“because of the dangerousness of the defendant,” and when
at least one specific statutory ground existed including, as
relevant here, when “the defendant is being sentenced for a
Class A felony, and * * * is suffering from a severe personal-
ity disorder indicating a propensity toward crimes that seri-
ously endanger the life or safety of another.” ORS 161.725(1).
Whether a defendant qualified as a dangerous offender was
determined by the sentencing court after a presentence
investigation and psychiatric evaluation had been conducted.
ORS 161.735.
4
We reject petitioner’s contention that the board should have applied the
current version of ORS 144.228. Petitioner relies on direct criminal appeals cases
that do not overrule longstanding case law holding that, in this agency setting,
the board applies the statute or rule in effect at the time the inmate committed
the crimes at issue.
To the extent that petitioner argues that the board violated his ex post facto
rights, the record does not support such an argument. To establish an ex post
facto violation, petitioner must show that the board applied the amended statute
retroactively and, as a result of that retroactive application, created the risk that
his punishment would increase. Cal. Dept. of Corrs. v. Morales, 514 US 499, 509,
115 S Ct 1597, 131 L Ed 2d 588 (1995). But the board applied the statute as it
existed at the time petitioner committed his crimes, and expressly stated that
even if it were to apply the later-enacted version of ORS 144.228, it would reach
the same result. Petitioner, thus, failed to establish retroactive application of the
statute.
Cite as 325 Or App 795 (2023) 799
Ultimately, the sentencing court’s task was to decide
for itself whether a defendant suffered from a severe person-
ality disorder that predisposed them to criminal activity,
because “the essence of the dangerous offender classifica-
tion is not one specific diagnosis, but any significant mental
or emotional disorder or disturbance—a lay concept[.] * * *
[T]he finding should be based on the judge’s evaluation of
all the information gathered, not exclusively on the clinical
diagnosis.” State v Huntley, 302 Or 418, 430, 730 P2d 1234(1986) (emphasis added). The sentencing court could, and
still may, impose up to a 30-year indeterminate sentence if
it found that a defendant so qualified. ORS 161.725.
During the first six months of a prisoner’s commit-
ment to a Department of Corrections (DOC) facility, the
board schedules either an initial release date or, in the case
of a dangerous offender, a parole consideration hearing.
ORS 144.228(1)(a). ORS 144.228(1)(b) governed the board’s
decision-making process at the parole consideration hearing
in this case. Washington, 294 Or App at 498. That provision
provides:
“At the parole consideration hearing, the prisoner shall
be given a release date in accordance with the applicable
range and variation permitted 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 other-
wise eligible under the rules. In no event shall the prisoner
be held beyond the maximum sentence less good time cred-
its imposed by the court.”
ORS 144.228 (1)(b). The board is to set a release date for any
person who was originally sentenced under ORS 161.725 as
a dangerous offender when the board is able to affirmatively
find that “the condition which made the prisoner dangerous
is absent or in remission.” In the absence of such affirmative
finding, ORS 144.228 does not authorize the board to set
a release date. Unless and until it can make the required
statutory finding, the board’s task is to set another review
hearing.
800 Guzek v. Board of Parole
In assessing whether a prisoner is still dangerous
at the time of the parole consideration hearing, ORS 144.228
requires the board to consider whether there is evidence
that the prisoner has a mental or emotional disorder that
would satisfy the terms of the dangerous offender statute,
but the board is not limited in its inquiry to the specific
diagnosis or traits that were present when the prisoner was
originally sentenced as a dangerous offender. Bell v. Board
of Parole, 283 Or App 711, 713, 391 P3d 907, rev den, 361 Or
645 (2017). That is at least in part because “the existence
of a particular diagnosis by a medical professional” is not
required when the sentencing court finds that the defen-
dant is a dangerous offender under ORS 161.725. Bell, 283
Or App at 719.
“[B]y requiring the parole board to evaluate the current
status of the condition which made the prisoner dangerous,
we conclude that the legislature intended that the board
evaluate the ‘condition’ found by the sentencing court—
that is, the condition of suffering from a severe personality
disorder indicating a propensity toward criminal activity—
and that such an evaluation does not depend upon the per-
sistence of the specific symptoms or traits present at the
time of sentencing.”
Id. at 720 (internal quotation marks omitted).
In considering whether and how long to defer a
parole consideration hearing the board applies the factors
listed in OAR 255-062-0016.5
5
OAR 255-062-0016 provides this nonexclusive list of factors, one or more of
which would support deferral of the parole consideration hearing date:
“(1) A determination by the Board, based on the psychological evaluation
and all the information available at the hearing, that the inmate has a men-
tal or emotional disturbance, deficiency, condition, or disorder predisposing
him/her to the commission of any crime to a degree rendering the inmate a
danger to the health or safety of others;
“(2) Infractions of institutional rules and discipline;
“(3) Commission of crimes subsequent to the crime of conviction;
“(4) Inmate’s failure to demonstrate understanding of the factors that
led to his/her criminal offense(s);
“(5) Inmate’s demonstrated lack of effort to address criminal risk factors
of psychological or emotional problems;
“(6) Inmate’s demonstrated lack of effort to address criminal risk factors
of substance abuse problems;
Cite as 325 Or App 795 (2023) 801
Here, with respect to the Class A felony convictions
for first-degree rape and first-degree burglary, and pursu-
ant to the then-effective version of ORS 161.725(1)(a), the
sentencing court made findings that petitioner was:
“a Dangerous Offender, based on the court’s finding that
[petitioner] suffers from a severe personality disorder and
[that he] has a propensity to commit crime.”
Maximum sentences of 30 years, with 15-year minimums,
were imposed on those convictions, and additional sen-
tences were imposed on the remaining convictions at that
time. Petitioner was later sentenced for the MVA related
convictions, and those sentences were imposed to run con-
secutively to those that petitioner was already serving. The
cumulative sentences added up to less than 100 years.
At the board’s January 21, 2021, parole consid-
eration hearing, it interviewed petitioner and reviewed
and considered a 36-page psychological evaluation dated
December 16, 2020, prepared by Lynette Hamilton, PsyD,
ABPP, a board-certified forensic psychologist. In determin-
ing whether to set a release date for a dangerous offender,
the board applies a “preponderance of the evidence” stan-
dard in determining whether the condition that made
the inmate dangerous is still present. Davis v. Board of
Parole, 341 Or 442, 448, 144 P3d 931 (2006). “As a practi-
cal matter, the risk of nonpersuasion falls on the prisoner.”
Id. at 447.
“(7) Failure to seek and maintain appropriate work or training;
“(8) Inmate’s failure to seek out and benefit from programming including
but not limited to sex offender treatment, batterers intervention programs,
anger management, cognitive therapy, and victim impact panels where
available;
“(9) Inmate’s inability to experience or demonstrate remorse or empathy;
“(10) Demonstrated poor planning and foresight;
“(11) Demonstrated impulsivity; or
“(12) Demonstrated lack of concern for others, including but not limited
to any registered victims.
“(13) Refusal to participate in Board-ordered psychological evaluation(s)
and/or refusal to participate in Board hearing.
“(14) The inmate is serving a concurrent sentence over which the Board
does not have release authority, and which has a release date ten or more
years from the projected parole release date on the Board sentence.”
802 Guzek v. Board of Parole
As pertinent here, Hamilton described petitioner’s
relevant background concerning, among other things, his
formative years, family of origin, education, employment,
military service, medical and mental health care, legal
issues, the conduct underlying his convictions, and his years
in DOC custody. Hamilton described prior evaluations con-
ducted in the parole consideration hearing context, includ-
ing some focus on sexual functioning and sexual offense
history and psychological testing. Hamilton interviewed
petitioner to get a sense of how he was functioning, and she
administered new batteries of psychological tests and risk
assessment inventories. Her conclusions, generally, were
that petitioner’s psychological test scores were valid, that
petitioner was “reluctant to recognize or acknowledge faults
or problems in himself,” and that he has significant alcohol-
related problems, all of which suggested that any treatment
would be challenging due to petitioner being defensive and
unwilling to talk about personal problems.
Hamilton diagnosed petitioner with antisocial traits,
alcohol use disorder (sustained remission due to con-
trolled environment), and pedophilic disorder (provisional).
Hamilton specifically explained that petitioner’s antisocial
traits were “clearly present,” but that without more infor-
mation about whether petitioner “exhibited symptoms of
conduct disorder as an adolescent,” it was not clear whether
he “meets full diagnostic criteria for antisocial personality
disorder.” The provisional diagnosis of pedophilic disorder
applied because there was a “strong presumption that the
diagnosis is appropriate.” Even though he continued to deny
the allegations that he raped and sodomized his daughter,
petitioner admitted that he began a sexual relationship
with a 13 year-old girl when he was 25 years old. Whether
his sexual interest in young children remained “intense”
was difficult to know, according to Hamilton, because of
petitioner’s advanced age and infirm condition, but the pre-
sumption that petitioner was a pedophile was nevertheless
strong. Hamilton described her use of risk management
tools—the Static-99R and the Risk for Sexual Violence
Protocol (RSVP)—to identify and assess known risk
factors.
Cite as 325 Or App 795 (2023) 803
The board decided not to assign a release date and
to instead reset the matter for another parole consideration
hearing three years later based on these findings:
“[T]he Board finds the offender has a mental or emotional
disturbance, deficiency, condition, or disorder predispos-
ing offender to the commission of any crime to the degree
rendering the offender a danger to the health or safety of
others; therefore, the condition which made the AIC dan-
gerous is not in remission and AIC does continue to remain
a danger.”
At petitioner’s request, the board reviewed its decision and
issued an ARR, in which it again explained its reasons for
deferring the parole consideration hearing.6
Petitioner’s arguments raise (1) a question about
the legal standard that the board was required to apply at
the parole consideration hearing, and (2) a factual question
about whether the board’s decision is supported by substan-
tial evidence and reason. We have already addressed the
question of which statutes apply to the board’s decision,
and now turn to the remaining question as to whether the
board’s decision is supported by substantial evidence and
reason. We conclude that it was.
The board’s BAF together with the ARR reflect suf-
ficient evidence and reason for the board’s decision because
those records detail that the board considered all the infor-
mation presented at the hearing, including the historical
events that led to petitioner’s incarceration as a dangerous
offender in the first place, petitioner’s behavioral and pro-
gram activities and records spanning his years in prison,
and Hamilton’s psychological evaluation. The BAF and ARR
identified and detailed the substance of the evidence that
led the board to conclude that petitioner had a mental or
6
The board expressed frustration at having to explain its decision again
when it wrote in ARR #8 that petitioner’s substantial evidence and reason argu-
ment was “disingenuous” and “baffling,” and that the request was itself evidence
of petitioner’s “deceitfulness.” Those judgments about the motivation or reasons
for petitioner’s request for review were gratuitous. Those gratuitous comments
were not necessary to the board’s decision, they suggested that the board might
use petitioner’s lawful request for review against him, and they were, in fact,
likely to draw more questions from petitioner. Despite those ill-advised com-
ments, they do not cancel the adequacy of the board’s decision on this record.
804 Guzek v. Board of Parole
emotional disturbance or condition that predisposed him to
commit crimes “to a degree rendering [petitioner] a danger
to the health or safety of others.”
We reject petitioner’s argument that the board was
required to use the phrase “dangerous criminal activity”
rather than “any crime” in describing its determination that
petitioner’s mental or emotional condition predisposed him
to criminal activity to a degree that rendered him danger-
ous to others. That argument isolates and latches onto the
phrase “dangerous criminal activity” as used in Huntley to
improperly conclude that, here, the board did not adequately
explain its determination that petitioner remained danger-
ous within the meaning of the dangerous offender statute.
Huntley did not change the board’s role, and it did not change
the standard for the board to follow, in parole consideration
hearings under ORS 144.228. The board’s assessment of
petitioner’s dangerousness was included as part of its expla-
nation for why it could not make the finding that the condi-
tion that made petitioner dangerous was in remission. And
without that finding, the board was without authority to set
a release date.
The BAF referred to Hamilton’s report and specif-
ically mentioned her diagnoses for petitioner—“antisocial
traits, alcohol use disorder in sustained remission in a con-
trolled environment, pedophilic disorder (provisional).” The
BAF also explained in more detail Hamilton’s opinion that
petitioner’s “antisocial traits are clearly present” and con-
nected those traits with concrete examples of petitioner’s
failure to conform to social norms. The BAF described the
board’s “particular concern” that Hamilton assessed peti-
tioner’s chronic risk for violence as moderate, concluding
that the elevated score in a person of advanced age was con-
cerning and directly pertinent to his dangerousness.
The BAF and ARR reflect that the board also exam-
ined petitioner’s lack of effort and understanding related to
the sex offenses, including his complete denial of any respon-
sibility for those crimes, as it considered all the information
before it. In short, the board specifically identified the perti-
nent diagnoses gleaned from Hamilton’s report, petitioner’s
lack of insight into his own criminality, his failure to take
Cite as 325 Or App 795 (2023) 805
responsibility for sexually assaulting his daughter, his fail-
ure to engage in sustained programming while in prison,
and his nonexistent parole plan, as it explained why it was
setting another parole consideration hearing. The board
also identified the factors on which it relied to set the next
hearing out another three years. The BAF and ARR pro-
vide the law and the facts on which the board’s decision was
made and it reflects the reasoning for that decision. That is
what the law requires. Jenkins, 356 Or at 208.
The board’s task was to consider and evaluate all
information brought to it to determine whether it could affir-
matively find that “the condition which made the prisoner
dangerous is absent or in remission.” It was not able to make
that finding here. The fact that Hamilton could not provide
an unqualified diagnosis of antisocial personality disorder
or pedophilic disorder does not mean that the board was
required to affirmatively find that the petitioner no longer
had a mental or emotional disorder that made him danger-
ous or that such disorder was in remission. To the contrary,
the board was obligated to consider all of the information
before it. Like the judge who originally found petitioner
to be a dangerous offender, the board’s job was to reach a
conclusion about mental disorders and dangerousness as
a “lay concept,” not entirely tethered to a psychological or
medical diagnosis. Huntley, 302 Or at 430. In the absence of
the required affirmative finding, ORS 144.228 required the
board to set another review hearing. That is what it did.
Affirmed.