DocketNumber: A154701
Citation Numbers: 283 Or. App. 650, 391 P.3d 831
Judges: Devore, Garrett, Ortega
Filed Date: 2/15/2017
Status: Precedential
Modified Date: 9/9/2022
The Board of Parole and Post-Prison Supervision postponed petitioner’s parole release date based on a finding that he had a present severe emotional disturbance (PSED) that constituted a threat to the health or safety of the community. That finding was based on a psychological evaluation of petitioner conducted in 2011, prior to his scheduled release date. The board later reopened the case for administrative review of its order. As part of the review process, and after petitioner’s release date had passed, the board ordered him to undergo a second psychological evaluation and exit interview. The board ultimately affirmed its earlier decision to postpone petitioner’s release based primarily on the second evaluation. Petitioner seeks judicial review, raising several interrelated arguments. Generally, he argues that the record—which he contends should only encompass the first psychological evaluation— does not support the board’s initial finding that he had a PSED and, as such, the board’s decision is not supported by substantial evidence and substantial reason. Further, petitioner argues that the board was not authorized to rely upon the second psychological evaluation and exit interview to justify its earlier decision to defer his release date. As we explain below, we agree with petitioner. Reviewing the board’s determinations for legal error, Porter v. Board of Parole, 281 Or App 237, 238, 383 P3d 427 (2016), we reverse and remand.
We begin with the relevant history of these proceedings. On May 30,1988, at age 17, petitioner murdered a young woman. He was convicted of murder and third-degree robbery and was ultimately sentenced to life in prison with the possibility of parole. See State v. Jones, 315 Or 225, 844 P2d 188 (1992) (vacating petitioner’s mandatory minimum sentence). The board set petitioner’s parole release date for June 30, 2012.
In September 2011, in anticipation of petitioner’s release date, petitioner underwent a psychological evaluation conducted by Dr. Templeman. As part of that evaluation, petitioner participated in several assessments, the results of
In November 2011, the board conducted an exit interview with petitioner during which the board asked petitioner about his crime and future parole plans. Shortly thereafter, the board issued Board Action Form (BAF) 12 in which it found that petitioner had a PSED. That order states:
“The Board determines that the psychological evaluation does constitute a finding that you have a present severe emotional disturbance such as to constitute a danger to the health or safety of the community. This determination is based solely on the psychological evaluation. The Board has considered this matter under the * * * substantive standard in effect at the time of the commitment offenses, and under all applicable rules and laws.”
(Emphasis added.) Based on that finding, the board postponed petitioner’s release date until June 30, 2016. See ORS 144.125(3) (1987), amended by Or Laws 1993, ch 334, § 1 (“If a psychiatric or psychological diagnosis of present severe emotional disturbance such as to constitute a danger to the health or safety of the community has been made with respect to the prisoner, the board may order the
In December 2011, petitioner timely sought administrative review of BAF 12. In his administrative review request form, petitioner contended that there was no substantial evidence to sustain the board’s ruling. He further claimed that, under Peek v. Thompson, 160 Or App 260, 980 P2d 178, rev dismissed, 329 Or 553 (1999), the board imper-missibly considered prior psychological reports and his exit interview in reaching its decision.
In January 2013, after petitioner’s release date had passed, the board, on its own motion, reopened BAF 12 for reconsideration, stating, “A new psychological evaluation will be obtained and the exit interview hearing will be reconvened on April 10, 2013 to allow inmate to present information relative to the content of the second psychological evaluation.” The board held petitioner’s request for administrative review until the conclusion of the reopened hearing.
Petitioner then completed a second psychological evaluation with Dr. McGuffin. In his report, McGuffin diagnosed petitioner with Mixed Personality Disorder with Antisocial and Avoidant Personality Features, in Partial Remission. He indicated that petitioner “is still seen as repressing awareness of uncomfortable experiences or perceptions, particularly perceptions of his self that can be perplexing” and that he “still lacks important insights about his intentions.” McGuffin concluded, in part, that, if petitioner “maintains a
Thereafter, in May 2013, the board issued Administrative Review Response 2 (ARR 2). In that response, the board explained its rationale for reopening the record. It stated that, after reviewing the record on which BAF 12 was based, it had found that Templeman’s
In challenging the board’s order, petitioner raises four assignments of error, which encompass two main arguments. Petitioner’s first assignment and primary argument focuses on BAF 12 and challenges the board’s initial decision to postpone his release. He argues that Templeman’s report—the sole stated basis for the board’s initial
Alternatively, in assignments two, three, and four, petitioner argues that the board erred by reopening the evidentiary record and relying on McGuffin’s evaluation to justify its earlier decision to postpone petitioner’s release. In particular, petitioner contends that the board erred by reopening BAF 12 after his release date had passed, by ordering a new psychological evaluation to justify its previous decision, and by reinstating its previous order. Further, petitioner contends that, even if such practice was lawful, it was inconsistent with the board’s prior practice, such that the board violated his equal protection rights under Article I, section 20, of the Oregon Constitution and the Fourteenth Amendment to the United States Constitution.
In responding to petitioner’s first assignment of error, the board does not contend that Templeman’s
In addressing petitioner’s remaining assignments of error (two, three, and four), the board argues that it was allowed to consider McGuffin’s evaluation when it agreed to review its decision in BAF 12. According to the board, it is “entitled to receive new evidence if that evidence will assist it in its reconsideration.” In support of that proposition, the board cites OAR 255-080-0012(1) (June 9, 2000), which states that the board has a basis to reopen a case for review if it meets the criteria under OAR 255-080-0010 (Oct 9, 1992) (e.g., if there exists “[p]ertinent information [that] was not available at the time of the hearing”). The board also notes that OAR 255-080-0012(2) (June 9, 2000) provides that the board may open a case for reconsideration “without receiving a request, without regard to time limits, and without opening all findings for review and appeal.” It contends that petitioner requested administrative review prior to his release date and that, “[f]rom that point on, the law provided no specific time limits within which the board was required to finish its administrative review.” Further, the board notes that it reconvened the exit interview to allow petitioner to address McGuffin’s evaluation, which it contends is our endorsed practice for avoiding unfairness. Ultimately, the board argues that it properly “considered [McGuffin’s] evaluation as a part of its determination of whether petitioner should have been released in 2012.” (Emphasis in original.)
At the outset, we note that it is evident that the board, on reconsideration, determined that Templeman’s
To be sure, it is generally true that the board has broad authority to reopen a case for reconsideration, even when a petitioner has not requested such review. See OAR 255-080-0012(1) - (2) (June 9, 2000). It is also true that one of the criteria the board may consider when deciding to reopen a case is whether “[p]ertinent information was not available at the time of the hearing.” OAR 255-080-0010(3) (Oct 9, 1992).
ORS 144.245(1) expressly provides that, when the board “has set a date on which a prisoner is to be released upon parole, the prisoner shall be released on that date unless the prisoner on that date remains subject to an unexpired minimum term.”
On judicial review, the issue is whether the board’s finding of a statutorily prescribed reason to postpone release was valid. Such a finding is valid only if it is supported by substantial evidence. See ORS 183.482(8)(c) (“The court shall set aside or remand the order if the court finds that the order is not supported by substantial evidence in the record.”). “Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding.” Id.; see, e.g., Edwards v. Board of Parole, 272 Or App 183, 190, 355 P3d 166, rev den, 358 Or 70 (2015) (“We examine the psychological evaluation as a whole to determine whether substantial
In this case, the board’s decision to reopen the evi-dentiary record as part of its administrative review was erroroneous because it failed to account for the statutory limitations outlined above. The board argues, in effect, that such limitations did not apply in petitioner’s case because the board’s reliance on McGuffin’s report was permissible under the administrative review process, given that such evidence was relevant to determining whether its initial finding, made prior to the release date, was proper. However, although it is true that the board made a finding that petitioner had a PSED prior to the release date (in BAF 12), that is not all that the statutory scheme requires. As noted above, ORS 144.125(3) requires that the board make a valid finding—that is, a finding based on substantial evidence that was available prior to the release date. Here, to postpone petitioner’s release date, the board had to make a valid finding that petitioner had a PSED before June 30, 2012. It did not do so. In ARR 2, the board acknowledged that, prior to petitioner’s 2012 release date, the evidence (Templeman’s report) was insufficient to affirmatively establish that petitioner had a PSED—a necessary predicate for postponing his release date.
The board also cites Jenkins v. Board of Parole, 356 Or 186, 335 P3d 828 (2014), for the proposition that the board can, after the release date has lapsed, supplement further reasoning and evidence if it is part of the administrative review process. We likewise reject that argument. In Jenkins, the Supreme Court concluded that the ARR is a “part of the final order for purpose of determining whether the board’s decision is supported by substantial reason.” 356 Or at 207 (emphasis added). Based on that holding, we agree that the board is allowed to supplement its reasoning with more detailed information about how the evidence supported its prior finding. The problem in this case, however, is that the board relied exclusively on new evidence— McGuffin’s report—to provide such reasoning. There is a difference between reopening a case to provide a more detailed explanation of the board’s original decision, as the board did in Jenkins, and reopening the evidentiary record to justify that prior decision with new evidence. Cf. Gordon v. Hill, 189 Or App 363, 370, 76 P3d 150 (2003), rev den, 339 Or 280 (2004) (noting that there is a qualitative difference between the board’s attempt to correct a prior misapplication of law or fact and “attempting, after the fact, to justify a decision based on evidence that did not even exist at the time of the original decision”). Ultimately, as we have previously indicated, after a release date has passed, “it does not
Reversed and remanded.
We refer to the 1987 version of ORS 144.125 here and in the remainder of this opinion because that is the statute that was in effect at the time that petitioner committed his crimes.
Under the Peek rule, “the psychologist’s or psychiatrist’s report must permit the Board to find that the psychologist diagnosed [the inmate] as having a severe emotional disturbance that constitutes a danger to the health or safety of the community.” Gordon v. Board of Parole, 343 Or 618, 628-29, 175 P3d 461 (2007) (internal quotation marks omitted; brackets in original). That is, the rule limits the documents that the board may consider when determining whether an inmate has a PSED to the psychologist’s report. See Edwards v. Board of Parole, 272 Or App 183, 189-90, 355 P3d 166, rev den, 358 Or 70 (2015).
The board memorialized its decision to reopen the case in Board Action Form 13 (BAF 13).
ARR 2 actually references “Dr. Shellman,” which we understand to be a typographical error. We assume that the board meant to reference Templeman.
Specifically, petitioner cites OAR 255-60-006(8) (May 19, 1988). That rule provides, “If the evaluation does not make a finding of a severe emotional disturbance such as to constitute a danger to the health or safety of the community, the Board shall affirm the parole release date and set parole conditions.”
Although petitioner has raised constitutional arguments, we resolve this case based on subconstitutional grounds, as is our ordinary practice. See State v. Hunt, 271 Or App 603, 607 n 1, 352 P3d 63 (2015).
Other criteria for reopening a case include:
“(1) The Board action is not supported by evidence in the record;
“(2) Pertinent information was available at the time of the hearing which, through no fault of the offender, was not considered;
⅜5 * $ 5⅜
“(4) The action of the Board is inconsistent with its rules or policies and the inconsistency is not explained; or
“(5) The action of the Board is outside its statutory grant of discretion;
“(6) The action of the Board is outside its statutory grant of discretion.”
OAR 255-080-0010 (Oct 9, 1992).
OAR 255-60-006(8) (May 19, 1988) similarly indicates that, absent a finding of a PSED, “the Board shall affirm the parole release date and set parole conditions.”
OAR 255-080-0012(2) (June 9, 2000) provides that the board “may open a case for reconsideration of a finding without receiving a request, without regard to time limits, and without opening all findings for review and appeal.”