Chapter 144
NOTES OF DECISIONS
Under
rules of State Board of Parole, board could not in determining history/risk
score, consider juvenile adjudications that had been expunged pursuant to
[former] ORS 419.800 to 419.839, even if prisoner admits to board that they
occurred. West v. Board of Parole, 86 Or App 616, 739 P2d 1096 (1987)
LAW REVIEW CITATIONS: 53 OLR 32, 67-79
(1973)
144.005 to 144.050
LAW REVIEW CITATIONS: 53 OLR 58 (1973)
144.005 to 144.270
LAW REVIEW CITATIONS: 55 OLR 303-347
(1976)
144.025
NOTES OF DECISIONS
Reduction
in number of State Board of Parole and Post-Prison Supervision members needed
to deny rerelease of prisoner is not ex
post facto increase in punishment. Butler v. Board of Parole and
Post-Prison Supervision, 194 Or App 164, 94 P3d 149 (2004), Sup Ct review
denied; Smith v. Board of Parole and Post-Prison Supervision, 343 Or 410,
171 P3d 354 (2007)
144.054
NOTES OF DECISIONS
This
section, which requires review by “the full membership of the board” of
decisions affecting petitioner who had been convicted of murder and sentenced
to life imprisonment, means all voting members of Board holding office and not
disqualified from voting. Lareson v. State Board of
Parole, 91 Or App 642, 756 P2d 674 (1988), Sup Ct review denied
“Review”
does not mean that board member must participate in hearing. Catlin v. Board of
Parole, 127 Or App 409, 873 P2d 368 (1994), Sup Ct review denied
144.075
NOTES OF DECISIONS
Person
released from jail pending parole revocation proceeding was not parole “violator”
and was not being “transported” to Corrections Division at time medical care
was given and division was not liable for care. Salem Hospital v. Marion
County, 307 Or 213, 766 P2d 376 (1988)
144.079
NOTES OF DECISIONS
Where
defendant was convicted of first degree rape, first degree sodomy and two
counts of sexual abuse, part of his consecutive sentence was imposed for crime
listed in this section and aggravation factor for consecutive sentences did not
apply. Plane v. Board of Parole, 114 Or App 60, 834 P2d 549 (1992)
Determination
of release eligibility date using summed-range method rather than principal-
and base-range method for listed crimes committed prior to statute enactment
date violates United States constitutional prohibition against ex post facto laws. Nulph
v. Faatz, 27 F3d 451 (9th Cir. 1994)
144.085
NOTES OF DECISIONS
Requirement
that person remain on parole until expiration of sentence could not
constitutionally be imposed retroactively to eliminate opportunity previously
available for early discharge from parole. Byrnes v. Board of Parole, 134 Or
App 296, 894 P2d 1252 (1995)
Board
authority with regard to prisoners sentenced for enumerated sex crimes is term
of post-prison supervision, not term of supervised parole. Fernandez v. Board
of Parole, 137 Or App 247, 904 P2d 1071 (1995); Williford
v. Board of Parole, 137 Or App 254, 904 P2d 1074 (1995), Sup Ct review
denied
State
Board of Parole and Post-Prison Supervision lacks authority to extend
post-prison supervision term beyond term imposed by court. Gaynor v. Board of
Parole, 165 Or App 609, 996 P2d 1020 (2000)
144.096
NOTES OF DECISIONS
If
facts in record developed by Board of Parole and Post-Prison Supervision
explain connection between imposed condition and statutory objectives of
protecting public and reforming offender, condition is “necessary” and within
range of board discretion, notwithstanding lack of fact-finding recitation.
Martin v. Board of Parole, 327 Or 147, 957 P2d 1210 (1998)
144.102
NOTES OF DECISIONS
Where
prisoner is sentenced for some offenses subject to parole and some offenses
subject to post-prison supervision, upon release, prisoner may be made subject
to both parole and post-prison supervision. Kowalski v. Board of Parole and
Post-Prison Supervision, 194 Or App 156, 93 P3d 831 (2004), Sup Ct review
denied
Special
condition of post-prison supervision is permissible unless special condition
lacks discernable relationship to individual circumstances of supervised person
or to protection of public. Weems v. Board of Parole, 221 Or App 70, 190 P3d
381 (2008), aff’d Weems/Roberts v. Board of
Parole, 347 Or 586, 227 P3d 671 (2010)
144.103
NOTES OF DECISIONS
Judgment
form specifying length of post-prison supervision that exceeded statutory
maximum and making reference to compliance with statute properly imposed
statutory maximum period. State v. Burch, 134 Or App 569, 896 P2d 10 (1995)
Where
defendant commits listed crime and other crimes during single criminal episode,
sentencing requirement of this section supersedes sentencing guideline for
crimes committed during single criminal episode. State v. Vedder,
206 Or App 424, 136 P3d 1128 (2006), Sup Ct review denied
Where
person is sentenced for multiple offenses described in this section, term of
post-prison supervision is calculated separately for each offense
notwithstanding that terms of post-prison supervision may be concurrent. Delavega v. Board of Parole, 222 Or App 161, 194 P3d 159
(2008); Norris v. Board of Parole and Post-Prison Supervision, 237 Or App 1,
238 P3d 994 (2010), Sup Ct review denied
144.106
NOTES OF DECISIONS
Incarceration
imposed as local sanction for post-prison supervision violation is not subject
to state incarceration limit for same type of violation. Rund
v. Board of Parole, 152 Or App 231, 953 P2d 766 (1998)
144.110
NOTES OF DECISIONS
This
section does not apply to sentences imposed for crimes committed before its
effective date. State v. Bussey, 34 Or App 535, 579
P2d 264 (1978)
Where
crimes were committed prior to effective date of this section, imposition of
minimum sentence was improper. State v. Jacobs, 34 Or App 755, 579 P2d 881
(1978), Sup Ct review denied
Sentencing
court’s recommendation that defendant not be paroled did not constitute imposition
of minimum sentence. State v. Mitchell, 35 Or App 809, 583 P2d 14 (1978), Sup
Ct review denied
This
section is not applicable to crimes committed before effective date. State v.
Gale, 36 Or App 275, 583 P2d 1169 (1978)
Circuit
court was within its authority under this section in imposing ten-year minimum
sentence in case where defendant was convicted of murder and sentenced to life
imprisonment pursuant to ORS 163.115. State v. Segner,
42 Or App 397, 600 P2d 916 (1979), Sup Ct review denied
Court
of Appeals has jurisdiction to review orders pursuant to this section setting
release dates. Harris v. Board of Parole, 288 Or 495, 605 P2d 1181 (1980)
There
is no conflict between this section and ORS 161.610 (minimum sentence for
commission of crime with firearm) and imposition of minimum 10 year sentence
under this section and concurrent minimum 5 year sentence under ORS 161.610 was
proper. State v. Warner, 52 Or App 987, 630 P2d 385 (1981), Sup Ct review
denied
Where
defendant was convicted on two charges of robbery in the first degree and one
charge of attempted murder, was found by trial court to be a “dangerous
offender” pursuant to ORS 161.725 and was sentenced under that statute to
consecutive maximum terms of 30 years on each conviction, trial court did not
err in imposing three consecutive minimum terms of 15 years. State v. Holmes,
62 Or App 652, 661 P2d 556 (1983), Sup Ct review denied
Authority
of court to impose minimum term is not applicable to life sentence. State v.
Macy, 295 Or 738, 671 P2d 92 (1983)
This
section and 161.610 are intended to operate together and court may not impose
consecutive minimum sentences under the two sections. State v. Walker, 68 Or
App 561, 683 P2d 1006 (1984)
Argument
that this section was violative of Oregon and U.S.
Constitutions because disproportionate to offense committed was without merit.
State v. Downs, 69 Or App 556, 686 P2d 1041 (1984)
This
statute provides authority for trial court to impose minimum term of
imprisonment of up to one-half sentence imposed pursuant to ORS 161.725,
dangerous offender statute. State v. Turner, 296 Or 451, 676 P2d 873 (1984)
Mandatory
minimum sentences for burglary, kidnapping and attempted rape are not
disproportionate under Article I, section 16 of the Oregon Constitution. State
v. Turner, 296 Or 451, 676 P2d 873 (1984)
This
section authorizes trial court to impose minimum term of imprisonment of up to
one-half of sentence it imposes and is inapplicable when defendant receives
life sentence. State v. McCormick, 80 Or App 191, 721 P2d 471, Sup Ct review
denied (1986)
Mandatory
minimum sentence under this section is not reduced for statutory good time in
same way minimum sentence for use of firearm in commission of felony under ORS
161.610 is reduced for statutory good time. Watts v. Maass,
88 Or App 317, 746 P2d 220 (1987)
Failure
of counsel to advise criminal defendant of possibility of minimum sentence
prior to defendant’s guilty plea is inadequate assistance of counsel under
Article I, section 11, of Oregon Constitution and is a substantial denial of
constitutional right. Hartzog v. Keeney, 304 Or 57,
742 P2d 600 (1987), as modified by Moen v. Peterson, 312 Or 503, 824 P2d
404 (1991)
Board
of Parole had authority to override only one of petitioner’s minimum sentences.
Allbee v. State Board of Parole, 99 Or App 201, 781
P2d 873 (1989), Sup Ct review denied
If
sentences are ordered to be served consecutively, minimum term of imprisonment
on each sentence must be served before defendant is entitled to parole. State
v. Duran, 108 Or App 220, 814 P2d 181 (1991)
Minimum
term is part of sentence and automatically concurrent or consecutive depending
on sentence to which it relates. State v. Duran, 108 Or App 220, 814 P2d 181
(1991)
Although
trial counsel’s failure to advise criminal defendant of possibility of minimum
sentence under this section before entry of guilty plea may constitute
ineffective assistance of counsel under Art. I, sec. 11 of Oregon Constitution
where petitioner for post-conviction relief did not raise issue in first
post-conviction hearing, he could not attack underlying conviction on that
basis in second post-conviction hearing. Martz v. Maass,
110 Or App 391, 822 P2d 750 (1991), Sup Ct review denied
In
post-conviction proceeding claiming inadequate assistance of counsel,
petitioner must show by preponderance of evidence that, had counsel informed
him of possibility of minimum sentence, or had he otherwise been aware of it,
he would not have pleaded no contest. Moen v. Peterson, 312 Or 503, 824 P2d 404
(1991)
Even
if petitioner obtained psychological exam or treatment and could show he no
longer suffers from dangerous condition, he still is not eligible for parole
until he serves minimum sentence of dangerous offender sentence imposed to run
concurrently with shorter robbery sentence. Sager v. Board of Parole, 121 Or
App 607, 856 P2d 329 (1993), Sup Ct review denied
Where
board votes to sustain minimum sentence of dangerous offender found to be in
remission, parole consideration hearing date required by ORS 144.228 becomes
parole release date. Smith v. Board of Parole, 126 Or App 563, 869 P2d 878
(1994)
144.120
NOTES OF DECISIONS
Victim’s
statement may not be submitted by person other than victim. Meriweather
v. Board of Parole, 97 Or App 212, 775 P2d 340 (1989)
Allowing
victims’ representatives to attend prison term reduction hearing for prisoner
sentenced prior to passage of statute permitting attendance was not ex post facto application of law. Dawson
v. Board of Parole, 123 Or App 619, 860 P2d 878 (1993)
144.122
NOTES OF DECISIONS
Parole
Board order under ORS 144.135 complies with this section, requiring board to
state in writing bases of its decision, when order discloses that board decided
not to advance petitioner’s parole release date. Cabantoy
v. Board of Parole, 88 Or App 621, 746 P2d 756 (1987)
After
Board of Parole votes to override judicial minimum sentence in order to allow
petitioner’s request for earlier release date under this section, board need
not set new initialrelease
date. Jeldness v. Board of Parole, 92 Or App 323, 759
P2d 1102 (1988), Sup Ct review denied; Smith v. Board of Parole, 126 Or
App 568, 869 P2d 881 (1994), Sup Ct review denied
Board
can consider seriousness of crime in determining amount of reduction to which
prisoner is entitled. Smith v. Board of Parole, 126 Or App 568, 869 P2d 881
(1994), Sup Ct review denied
ATTY. GEN. OPINIONS: Board’s “reset’
authority under this section and Department of Corrections authority to reduce
term of incarceration could not be applied so that entire prison population
would be subject to one set of standards, (1989) Vol
46, p 275
144.123
NOTES OF DECISIONS
Where
petitioner, though not represented at parole board hearing, had right to be
accompanied by person of his choice under this section, he was afforded
sufficient due process protection. Jancsek v. Oregon
Bd. of Parole, 833 F2d 1389 (1987)
144.125
NOTES OF DECISIONS
Requirement
of hearing in this section cannot be eliminated by administrative rule. Jeanes v. Board of Parole, 83 Or App 410, 732 P2d 51 (1987)
1993
amendment governing release delay based on mental or emotional condition that
predisposes prisoner to commit future crime imposes more onerous standard than preamendment version of statute and therefore cannot be
applied retroactively. Meadows v. Schiedler, 143 Or
App 213, 924 P2d 314 (1996)
Version
of statute applicable to sentences for pre-1993 crimes does not require that
determination that prisoner is danger to community be part of psychiatric or
psychological report. Merrill v. Johnson, 155 Or App 295, 964 P2d 284 (1998),
Sup Ct review denied. But see Peek v. Thompson, 160 Or App 260,
980 P2d 178 (1999)
Standard
of review in habeas corpus proceeding
regarding release order of State Board of Parole and Post-Prison Supervision is
whether “some evidence” supports order. Hamel v. Johnson, 173 Or App 448, 25
P3d 314 (2001), Sup Ct review denied
For
prisoner whose commitment offense occurred prior to 1981 amendment, State Board
of Parole and Post-Prison Supervision has discretion to postpone parole where
severe emotional disturbance makes prisoner dangerous to community. McCline v. Board of Parole and Post-Prison Supervision, 205
Or App 144, 133 P3d 349 (2006), Sup Ct review denied
Where
prisoner does not suffer prejudice from late filing, State Board of Parole and
Post-Prison Supervision may consider psychiatric or psychological report filed
more than 60 days after examination. Demeyer v. Board
of Parole and Post-Prison Supervision, 206 Or App 740, 139 P3d 969 (2006), on
reconsideration 208 Or App 267, 144 P3d 981 (2006)
Under
1981 version of this section, State Board of Parole and Post-Prison Supervision
may conduct review for deferring release even if prisoner does not have scheduled
release date. Corgain v. Board of Parole and
Post-Prison Supervision, 213 Or App 407, 162 P3d 990 (2007)
Use
of preponderance of evidence standard to find that prisoner has present severe
emotional disturbance constituting danger to community satisfies due process
requirements. Stogsdill v. Board of Parole and
Post-Prison Supervision, 342 Or 332, 154 P3d 91 (2007)
Under
1991 version of this section, requirement that psychiatric or psychological
diagnosis show prisoner to have present severe emotional disturbance
constituting danger to health or safety of community was sufficient limitation
to overcome vagueness challenge. Hess v. Board of Parole, 514 F3d 909 (9th Cir.
2008)
144.135
NOTES OF DECISIONS
This
section does not require that probable cause for parole revocation and actual
revocation be determined at the same hearing. Waltz v. Bd. of Parole, 18 Or App
652, 526 P2d 586 (1974)
Parole
Board order under this section complies with ORS 144.122, requiring board to
state in writing bases of its decision, when order discloses that Board decided
not to advance petitioner’s parole release date. Cabantoy
v. Board of Parole, 88 Or App 621, 746 P2d 756 (1987)
This
section does not require parole board members to state facts and reasons for
not overriding mandatory minimum sentence imposed by sentencing court. Anderson
v. Board of Parole, 303 Or 618, 740 P2d 760 (1987)
144.223
NOTES OF DECISIONS
Where
prisoner does not suffer prejudice from late filing, State Board of Parole and
Post-Prison Supervision may consider report filed more than 60 days after
examination. Demeyer v. Board of Parole and
Post-Prison Supervision, 206 Or App 740, 139 P3d 969 (2006), on
reconsideration 208 Or App 267, 144 P3d 981 (2006)
Where
psychological report is not filed within required time, inmate alleging
prejudice due to late filing must show late filing renders report unreliable. Demeyer v. Board of Parole and Post-Prison Supervision, on
reconsideration 208 Or App 267, 144 P3d 981 (2006)
144.226
NOTES OF DECISIONS
Inmate
may be required to undergo multiple psychological examinations in connection
with single parole consideration hearing. Colby v. Thompson, 183 Or App 311, 52
P3d 1058 (2002), Sup Ct review denied
LAW REVIEW CITATIONS: 10 WLJ 176 (1974)
144.228
NOTES OF DECISIONS
Where
defendant was sentenced to 15-year minimum sentence under dangerous offender
statute, Board of Parole properly set parole consideration date at 15 years
after defendant began serving sentence. Teague v. Board of Parole, 105 Or App 1,
803 P2d 279 (1990), Sup Ct review denied; Allred v. Board of Parole, 124
Or App 278, 862 P2d 546 (1993), Sup Ct review denied
Where
board votes to sustain minimum sentence of dangerous offender found to be in
remission, parole consideration hearing date becomes parole release date. Smith
v. Board of Parole, 126 Or App 563, 869 P2d 878 (1994)
Procedural
change eliminating fixed period for dangerous offender parole reviews is not ex post facto increase in punishment for
offense. Scott v. Baldwin, 225 F3d 1020 (9th Cir. 2000)
Prisoner
bears burden of persuading State Board of Parole and Post-Prison Supervision
that evidence before board meets substantive standard for giving prisoner
release date. Davis v. Board of Parole and Post-Prison Supervision, 341 Or 442,
144 P3d 931 (2006)
Where
board decides to not establish release date, findings justifying decision are
not required. Guzek v. Board of Parole, 222 Or App
81, 191 P3d 800 (2008), Sup Ct review denied
144.245
NOTES OF DECISIONS
Prisoners
sentenced for crimes committed prior to section’s 1985 effective date cannot be
required to accept parole. Bollinger v. Board of Parole, 142 Or App 81, 920 P2d
1111 (1996), aff’d 329 Or 505, 992 P2d 445
(1999)
144.270
NOTES OF DECISIONS
The
parole-granting process continues until the inmate is actually released from
confinement so that an order of the board canceling its previous order of
parole did not constitute a revocation of parole where the order of
cancellation preceded and prevented the actual release of the inmate and
thereby brought the parole-granting process to a halt. Bailleaux
v. Cupp, 16 Or App 573, 520 P2d 483 (1974), Sup Ct review
denied
The
board does not abuse its discretion under this section by requiring an inmate
to waive extradition as a condition of his release on parole where a detainer
has been filed by another state. Bailleaux v. Cupp, 16 Or App 573, 520 P2d 483 (1974), Sup Ct review
denied
The
Board of Parole did not act illegally in imposing upon the prisoner a condition
that he sign a waiver of extradition before being granted parole to authorities
of another state. Bailleaux v. Cupp,
535 F2d 543 (1976)
Where
knife was stored in location where person would logically store knife intended
to be used against other persons, knife was “weapon.” Brundridge
v. Board of Parole and Post-Prison Supervision, 192 Or App 648, 87 P3d 703
(2004), Sup Ct review denied
Person
does not “frequent” place by going to place one time. Brundridge
v. Board of Parole and Post-Prison Supervision, 192 Or App 648, 87 P3d 703
(2004), Sup Ct review denied
Where
prisoner is sentenced for some offenses subject to parole and some offenses
subject to post-prison supervision, upon release, prisoner may be made subject
to both parole and post-prison supervision. Kowalski v. Board of Parole and
Post-Prison Supervision, 194 Or App 156, 93 P3d 831 (2004), Sup Ct review
denied
144.275
NOTES OF DECISIONS
This
section, empowering Board of Parole to establish restitution schedule for
parolees, did not relieve trial court of duty to enter order specifying, inter alia, time, place and manner of
payment. State v. Ewing, 36 Or App 573, 585 P2d 34 (1978)
Since
this section places responsibility for deciding conditions of parole with
Parole Board, court order which required defendant to make monthly payments as
condition of parole was not binding. State v. Kipp,
52 Or App 1011, 630 P2d 394 (1981); State v. Secreto,
54 Or App 709, 636 P2d 438 (1981)
Sentencing
court has no authority to order defendant to pay restitution as condition of
parole. State v. Gaines, 103 Or App 646, 798 P2d 730 (1990)
ATTY. GEN. OPINIONS: Board requirement
that parolee make restitution as condition of parole, (1981) Vol 42, p 117
144.331
NOTES OF DECISIONS
Arrest
requirement does not create duty to protect members of general public from
parole violator. McAlpine v. Multnomah County, 131 Or
App 136, 883 P2d 869 (1994), Sup Ct review denied
LAW REVIEW CITATIONS: 53 OLR 65 (1973)
144.335
NOTES OF DECISIONS
The
procedure set out in this section is constitutional without being duplicative.
Waltz v. Bd. of Parole, 18 Or App 652, 526 P2d 586 (1974)
Challenge
to refusal of Board of Parole to set release date should have been brought
under this section rather than through declaratory judgment provisions of ORS
chapter 28. Sterling v. Blalock, 47 Or App 275, 614 P2d 610 (1980)
Court
of Appeals had jurisdiction to review final orders by Board of Parole relating
to granting of parole. Harris v. Board of Parole, 288 Or 495, 605 P2d 1181
(1980)
Failure
of Parole Board to reduce time for petitioner’s release to the time he felt was
proper, even though the Board did in fact reduce the release time from its
original determination, caused petitioner to be “adversely affected or
aggrieved by a final order” within meaning of this section. Hein v. Board of
Parole, 56 Or App 293, 641 P2d 642 (1982)
Parole
Board order setting release date is not final order while administrative review
is pending. Palaia v. Board of Parole, 57 Or App 781,
646 P2d 654 (1982)
This
section does not create duty for the Parole Board to notify inmates of right to
judicial review of its orders and, therefore, petitioner is not excused from
his failure to seek that review. Billings v. Maass,
86 Or App 66, 738 P2d 222 (1987)
Board
of Parole order setting parole consideration hearing date is final order
related to granting of parole and is subject to review. Meriweather
v. Board of Parole, 307 Or 509, 770 P2d 593 (1989)
Order
from Board of Parole that only denied reconsideration of its original order
setting petitioner’s parole release date is not final order subject to review.
Perez v. Board of Parole, 102 Or App 117, 792 P2d 1246 (1990), Sup Ct review
denied; Mastriano v. Board of Parole and
Post-Prison Supervision, 342 Or 684, 159 P3d 1151 (2007)
Board
of Parole’s decision not to change original parole consideration hearing date
did not change minimum duration of petitioner’s imprisonment and therefore was
not final order within meaning of this section. Willaby
v. Board of Parole, 103 Or App 83, 797 P2d 1050 (1990), Sup Ct review denied;
Scott v. Board of Parole, 117 Or App 170, 843 P2d 959 (1992), Sup Ct review
denied; Sager v. Board of Parole, 121 Or App 607, 856 P2d 329 (1993), Sup
Ct review denied
Exhaustion
requirement of this section referred to exhaustion of administrative review
process that was already provided by Board rule when statutory amendment took
effect. Jenkins v. Board of Parole, 313 Or 234, 833 P2d 1268 (1992)
Where
State Board of Parole and Post-Prison Supervision issues revised order on
reconsideration while judicial review is pending, petitioner must first request
administrative review of revised order then file amended petition for judicial
review within 60 days following order issued upon administrative review. Roof
v. Board of Parole, 159 Or App 408, 977 P2d 429 (1999)
“Substantial
question of law” requires more than colorable claim of error but less than
substantial certainty petitioner will prevail on judicial review. Rodriguez v.
Board of Parole and Post-Prison Supervision, 187 Or App 282, 67 P3d 970 (2003)
“Substantial
question of law” is not presented if: 1) ruling raising question is not
reviewable; 2) question is contrary to constitutional statute; 3) question is
contrary to state appellate decisions and does not raise new argument or cite
new authority; or 4) disposition of question is controlled by unambiguous
language of valid administrative rule. Rodriguez v. Board of Parole and
Post-Prison Supervision, 187 Or App 282, 67 P3d 970 (2003)
Motion
for leave to proceed with judicial review stands or falls on questions of law
argued in motion, notwithstanding whether other unarticulated questions of law
are present in case. Rodriguez v. Board of Parole and Post-Prison Supervision,
187 Or App 282, 67 P3d 970 (2003)
If
petitioner identifies at least one substantial question of law, motion for
leave to proceed with judicial review will be granted even if petitioner has
asserted other questions of law that are not substantial. Rodriguez v. Board of
Parole and Post-Prison Supervision, 187 Or App 282, 67 P3d 970 (2003)
In
absence of other appropriate procedure for filing request for review, inmate’s
deposit of request into institution’s mail system on or before due date
satisfies exhaustion of remedies requirement. Ayres v. Board of Parole and
Post-Prison Supervision, 194 Or App 429, 97 P3d 1 (2004)
Lack
of statutory time limit demonstrates legislative intention not to burden State
Board of Parole and Post-Prison Supervision with time constraint for issuance
of administrative review response. Taylor v. Board of Parole and Post-Prison
Supervision, 200 Or App 514, 115 P3d 256 (2005), Sup Ct review denied
Requirement
that person seeking judicial review be “adversely affected or aggrieved” by action
of State Board of Parole and Post-Prison Supervision means that person must
have standing to obtain review, not that person must have meritorius
claim. Richards v. Board of Parole and Post-Prison Supervision, 339 Or 176, 118
P3d 261 (2005)
“Substantial
question of law” means soundly based, firmly supported question, capable of
adjudication as to what law is, that is presented by facts of particular case
at bar. Atkinson v. Board of Parole and Post-Prison Supervision, 341 Or 382,
143 P3d 538 (2006)
Authority
of Court of Appeals to award attorney fees to Board of Parole and Post-Prison
Supervision for motions that fail to state colorable claim does not preclude,
by negative inference, court from awarding payment of other costs pursuant to
express statutory authority. Blacknall v. Board of
Parole, 223 Or App 294, 196 P3d 20 (2008), aff’d
348 Or 131, 229 P3d 595 (2010)
Final
order that advises person that Board of Parole and Post-Prison Supervision
intends to impose certain conditions in subsequent order is not subject to
judicial review. Wyatt v. Board of Parole and Post-Prison Supervision, 230 Or
App 581, 216 P3d 926 (2009), Sup Ct review denied
Where
Board of Parole and Post-Prison Supervision constructively opens earlier order,
that order constitutes final order and is subject to judicial review. Dawson/
Fletcher v. Board of Parole and Post-Prison Supervision, 346 Or 643, 217 P3d
1055 (2009)
LAW REVIEW CITATIONS: 54 OLR 416 (1975)
144.343
NOTES OF DECISIONS
A
parolee has a constitutional right to an on-site hearing by which a person
other than the parole officer who recommends revocation can decide whether
there is probable cause to revoke, and a parolee who is denied such a hearing
must be granted relief if he suffered prejudice as a result of that denial. Huckaby v. Newell, 16 Or App 581, 519 P2d 1290 (1974)
Where
inmate is granted parole but has not been scheduled for release, revocation
does not entail procedural requirements that would apply if inmate were in
parole status. Boyd v. Board of Parole, 23 Or App 266, 541 P2d 1068 (1975)
Where
board refers to record submitted by hearings officer, written statement of
evidence relied upon is not required. Sandersfeld v.
Oregon State Board of Parole, 25 Or App 323, 548 P2d 1333 (1976)
Where
board impliedly adopts findings of fact by hearings officer, recital of
findings of fact is not required. Sandersfeld v.
Oregon State Board of Parole, 25 Or App 323, 548 P2d 1333 (1976)
Where
Board revoked parole by order which merely gave notice of entitlement to review
of order, parolee was not afforded full due process hearing contemplated by
this section. Erickson v. Board of Parole, 34 Or App 323, 578 P2d 499 (1978)
Where
there were no complex issues or substantial mitigating factors to be presented
in parole revocation hearing, it was not abuse of discretion for Board of
Parole to deny appointment of counsel, despite parolee’s assertion that he was “incapable
of speaking effectively for himself.” Ritchie v. Board of Parole, 35 Or App
711, 583 P2d 1 (1978), on reconsideration 37 Or App 385, 587 P2d 1036
(1978)
Where
petitioner neither denied that he violated conditions of parole nor presented
any reason justifying appointment of counsel, Board of Parole did not err in
denying request for appointed counsel for revocation hearing. Asher v. State
Board of Parole, 100 Or App 592, 786 P2d 1323 (1990), Sup Ct review denied
Notice
of hearing right regarding revocation need not inform violator of possible
consequences of revocation that may arise in later proceedings. Woolstrum v. Board of Parole, 141 Or App 332, 918 P2d 112
(1996), Sup Ct review denied
Ability
of board to revoke parole and require violator to serve remainder of sentence
is not subject to limitations of parole revocation rules adopted under ORS
144.346. Kessler v. Board of Parole, 145 Or App 584, 931 P2d 801 (1997)
Where
parole condition requires person to obey all municipal, county, state and
federal laws, fact that person has been arrested does not establish probable
cause to believe person has violated condition. Mageske
v. Board of Parole and Post-Prison Supervision, 173 Or App 209, 21 P3d 150
(2001)
Relevance
of information in proceeding for alleged parole violation is determined using
definition of relevance set forth in Oregon Evidence Code. O’Hara v. Board of
Parole, 346 Or 41, 203 P3d 213 (2009)
ATTY. GEN. OPINIONS: Requirement on
state to furnish legal counsel to indigent parolee during revocation
proceeding, (1982) Vol. 42, p 232
LAW REVIEW CITATIONS: 53 OLR 67-79
(1973)
144.346
NOTES OF DECISIONS
Requirement
that sanctions be consistent with rules of commission to “extent permissible
under law” does not deprive board of authority under ORS 144.343 to require
violator to serve remainder of sentence. Kessler v. Board of Parole, 145 Or App
584, 931 P2d 801 (1997)
144.350
NOTES OF DECISIONS
Where
arrest for violating terms of release is based on reasonable suspicion, arrest
cannot support search incident to arrest. State v. Meier, 145 Or App 179, 929
P2d 1052 (1996)
ATTY. GEN. OPINIONS: Corrections
Division not required to reimburse for incarceration costs of parolees, (1976) Vol 38, p 137
LAW REVIEW CITATIONS: 53 OLR 63 (1973)
144.360
NOTES OF DECISIONS
Applicability
of laws applying to warrants of arrest does not require that arrest warrant be
in writing. State v. Meier, 145 Or App 179, 929 P2d 1052 (1996)
144.410 to 144.525
ATTY. GEN. OPINIONS: Priority of payment
of earnings, (1976) Vol 37, p 1503
144.420
ATTY. GEN. OPINIONS: Advance notice of
temporary releases, (1975) Vol 37, p 943; limitations
on disbursements of inmate compensation, (1996) Vol
48, p 134
144.490
ATTY. GEN. OPINIONS: Advance notice of
temporary releases, (1975) Vol 37, p 943
144.500
NOTES OF DECISIONS
Actions
taken by the Corrections Division in terminating a person’s enrollment in a
work release program are exempt from provisions of the Administrative
Procedures Act. Paola v. Cupp, 11 Or App 43, 500 P2d
739 (1972), Sup Ct review denied
144.610
NOTES OF DECISIONS
Since
acceptance of out-of-state probationer for supervision is administrative
decision, trial court had no authority to order state to accept supervision of
defendant’s probation. State v. Geist, 55 Or App 580,
639 P2d 660 (1982)
144.625
LAW REVIEW CITATIONS: 80 OLR 267 (2001)
144.640
See
annotations under ORS 144.649.
144.642
LAW REVIEW CITATIONS: 86 OLR 219 (2007)
144.649
(formerly
144.640)
See
annotations under ORS 143.010 in permanent edition.
144.650
See
annotations under ORS 143.040 in permanent edition.
144.660
See
annotations under ORS 143.050 in permanent edition.
144.670
See
annotations under ORS 143.060 in permanent edition.
144.780
NOTES OF DECISIONS
Rules
promulgated by Board of Parole creating “matrix system” were within legislative
delegation of authority under this section. Folk v. Board of Parole, 53 Or App
142, 631 P2d 353 (1981)
Defendant’s
denial of guilt is not a mitigating factor under this section. Reese v. Board
of Parole, 303 Or 692, 740 P2d 784 (1987)
This
section provides no legal basis for completely excluding item offered in
mitigation on ground it is not directly related to circumstances surrounding
present crime. Calderon-Pacheco v. Board of Parole, 309 Or 454, 788 P2d 1001
(1990)
Requirement
that range of duration of imprisonment be established for offense is not
requirement to set parole release date for individual offender. Engweiler v. Board of Parole, 343 Or 536, 175 P3d 408
(2007)
144.783
NOTES OF DECISIONS
Under former similar statute (ORS
144.785)
Power
of board to unsum sentences set by board did not
allow unsumming consecutive sentences for aggravated
murder. Severy v. Board of Parole, 318 Or 172, 864
P2d 368 (1993)
In general
Determination
of release eligibility date using summed-range method rather than principal-
and base-range method for crimes listed under ORS 144.079 and committed prior
to statute enactment date violates United States constitutional prohibition
against ex post facto laws. Nulph v. Faatz, 27 F3d 451 (9th
Cir. 1994)
144.785
NOTES OF DECISIONS
Since
Board of Parole is not authorized to keep individual incarcerated beyond
maximum period of imprisonment set at sentencing, it was error for judge to
state, at time of imposing sentence, that number of years he sentenced
defendant was merely academic because of Board’s schedule for determining
parole. State v. Gibson, 36 Or App 111, 583 P2d 584 (1978), Sup Ct review
denied
This
section does not require that, in setting parole release date, Parole Board
determine by rule, in advance, every circumstance it may consider to be
aggravating or mitigating. Moore v. Ore. State Bd. of Parole, 54 Or App 369,
635 P2d 3 (1981)
This
section does not require Parole Board to determine, in advance, maximum
variations permitted from the matrix range. Hein v. Board of Parole, 56 Or App
293, 641 P2d 642 (1982)
Where
rules adopted pursuant to this section contain no legal basis for completely
excluding item offered in mitigation on ground it is not directly related to
circumstances surrounding present crime, exclusion of mitigating evidence
offered was not consistent with rules of Board of Parole. Calderon-Pacheco v.
Board of Parole, 309 or 454, 788 P2d 1001 (1990)
144.790
NOTE:
Repealed September 9, 1995; ORS 144.791 enacted in lieu
See
annotations under ORS 144.791.
144.791
NOTES OF DECISIONS
Under former similar statute (ORS
144.790)
This
section and ORS 137.120 are mandatory, not discretionary, and trial court was
required to obtain and consider presentence report and state on record reasons
for its decisions, notwithstanding waiver of presentence report by defendant.
State v. Biles, 34 Or App 531, 579 P2d 259 (1978), aff’d 287 Or 63, 597 P2d 808 (1979)
Where
revocation of suspended sentence occurred subsequent to effective date of this
section, presentence report was prerequisite to imposition of sentence. State
v. Gale, 35 Or App 3, 580 P2d 1036 (1978)
It
was error for court, prior to imposing sentence upon revocation of probation,
to fail to require Corrections Division to furnish copy of presentence report.
State v. Blume, 36 Or App 161, 583 P2d 34 (1978)
Presentence
report requirement of this section was fulfilled where trial judge relied on
3-week old presentence report and any new relevant material that was before
court. State v. Corrick, 38 Or App 247, 589 P2d 1186
(1979)
Where
court did no more than order execution of previously imposed suspended
sentence, it was not imposing sentence or acting as “sentencing court” within
meaning of this section, and requirement of presentence report did not apply.
State v. Gustafson, 38 Or App 437, 590 P2d 733 (1979)
Where
there was delay between preparation of presentence report and sentencing, but
defendant was in custody and no new and relevant material was omitted from
report because of delay, there was no requirement under this section that
presentence report be updated. State v. Gibson, 38 Or App 593, 590 P2d 797
(1979)
Presentence
report relating to earlier crime without sentence recommendation for subsequent
crime was insufficient under this section to sentence for later crime. State v.
Wash, 39 Or App 447, 592 P2d 1035 (1979)
Where
sentence had been vacated and new probation granted, pre-sentence report was
required before court revoked probation and imposed sentence because court was
acting as “sentencing court” within meaning of this section. State v. Hallin, 43 Or App 401, 602 P2d 1134 (1979)
Term
“criminal prosecution” in Oregon Constitution Article I, section 11, includes
sentencing and presentence interview requires assistance of counsel. State ex rel Russell v. Jones, 293 Or 312, 647 P2d 904 (1982)