Barrett v. Board of Parole , 336 Or. App. 215 ( 2024 )

No. 818 November 14, 2024 215
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
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
A177883
Submitted December 11, 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 appellant.
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, Pagán, Judge, and Mooney,
Senior Judge.
SHORR, P. J.
Affirmed.
216 Barrett v. Board of Parole
SHORR, P. J.
In 1994, petitioner robbed a convenience store and
shot and killed the store clerk. State v. Barrett, 331 Or 27, 10
P3d 901 (2000), overruled in part by Martinez v. Cain, 366 Or
136, 458 P3d 670 (2020). He was sentenced to life in prison
with a 30-year minimum term of incarceration for aggravated
murder and a consecutive sentence of 72 months of prison for
first-degree robbery. In May 2021, the Board of Parole and
Post-Prison Supervision (the board) held a murder-review
hearing under ORS 163.105 and issued Board Action Form
(BAF) #7, in which the board found that petitioner was likely
to be rehabilitated within a reasonable period of time and
converted his sentence for aggravated murder to life with
the possibility of parole. The board subsequently held an exit
interview pursuant to ORS 144.125 and issued BAF #8, set-
ting petitioner’s parole release date to the date of the inter-
view, November 8, 2021. Due to having received a number of
additional consecutive sentences, petitioner was not released
from confinement at that time; rather, he began serving his
72-month sentence for first-degree robbery.
Petitioner sought administrative review of the board’s
decision in BAF #8, raising a number of arguments relating to
the summing and unsumming of his consecutive prison terms
and asserting that the board had erroneously disregarded his
earned-time credits in calculating the parole release date. The
board concluded that petitioner’s arguments were untimely
and not properly raised because they were not at issue in an
exit interview and therefore had not been decided in BAF #8,
and that most were really challenges to BAF #7. Petitioner
seeks judicial review and renews his contentions. We affirm.
We note that the only matter addressed in BAF #8
was setting the parole release date for petitioner’s aggra-
vated murder conviction. The calculation of consecutive
prison terms was not at issue in the exit interview—it was
only a matter of interviewing petitioner and reviewing his
parole plan and psychiatric reports. ORS 144.125. Because
petitioner’s first five assignments of error raise issues that
were not before the board in BAF #8, they are not properly
before us. See, e.g., Wyatt v. Board of Parole, 230 Or App 581,
584-85, 216 P3d 926 (2009), rev den, 348 Or 524 (2010) (noting
Nonprecedential Memo Op: 336 Or App 215 (2024) 217
that the order that the petitioner had sought review of did
not actually impose the supervision conditions that the peti-
tioner challenged and therefore the courts could not provide
the relief that the petitioner sought). We further note that
petitioner filed a separate appeal of BAF #7, raising similar
arguments regarding the summing and unsumming of his
various consecutive sentences, which we recently affirmed.
Barrett v. Board of Parole, 332 Or App 463, 466, 549 P3d 12
(2024) (concluding that the board lacked authority under the
circumstances to sum and unsum petitioner’s sentences).
In his sixth assignment of error, petitioner asserts
that the board erred in failing to grant him earned-time
credits for his term of incarceration, maintaining that his
release date from the aggravated murder sentence should
have been August 23, 2017, based on calculations made by
the Department of Corrections (DOC). Petitioner’s argument
is not persuasive. It is the responsibility of DOC to calculate
earned-time credits and use them to determine a release
date. See generally OAR 291-097-0240. Such calculations can-
not be conclusively made until the board sets a release date,
thus defining the “term of incarceration” for an individual
serving an indeterminate sentence. See State ex rel Engweiler
v. Cook, 340 Or 373, 383-84, 133 P3d 904 (2006) (noting that
earned-time credits could only be credited against a “term of
incarceration,” which was defined once the board set a release
date). Petitioner did not have a set release date until the
board issued BAF #8. It was then the responsibility of DOC
to apply earned-time credits based on the established term of
incarceration.1 The board did not err in establishing a parole
release date without considering earned-time credits.
We also reject petitioner’s procedural due process
argument for a similar reason. Petitioner contends that he
was denied procedural due process when the board pur-
portedly “adjusted his earned-time date” because the board
lacked statutory authority to do so. As discussed above, the
board did not adjust petitioner’s earned-time date and any
earned-time credits are to be applied by DOC.
Affirmed.
1
We note that DOC made an estimated projected calculation of petitioner’s
earned date prior to the board issuing BAF #8, based on the projected parole
release date included in BAF #7.