Chapter 144

 

      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)

 

      Prohibition on releasing person convicted of aggravated murder on parole is not applicable to juvenile convicted of aggravated murder because juvenile convicted of aggravated murder is sentenced to indeterminate period of time. State ex rel Engweiler v. Felton, 350 Or 592, 260 P3d 448 (2011)

 

      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)

 

      Phrase “with the exception of those sentenced for aggravated murder” does not preclude Board of Parole and Post-Prison Supervision from holding parole hearing for person convicted of aggravated murder who is eligible for parole under other section of law. State ex rel Engweiler v. Felton, 350 Or 592, 260 P3d 448 (2011)

 

      Where prisoner is juvenile convicted of aggravated murder after 1991, Board of Parole and Post-Prison Supervision is required to hold parole hearing, at time of its discretion, following admission of prisoner to institution. State ex rel Engweiler v. Felton, 350 Or 592, 260 P3d 448 (2011)

 

      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)

 

      This section does not create right for inmate to bring any person of the inmate’s choice to hearing before State Board of Parole and Post-Prison Supervision but instead authorizes board and Department of Corrections to jointly promulgate rule regarding persons who may accompany inmate at hearing and inmate may choose from among persons named in rule. Smith v. Board of Parole and Post-Prison Supervision, 272 Or App 493, 356 P3d 158 (2015)

 

      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)

 

      Ability of prisoner to call witnesses or cross-examine people who have provided information to Board of Parole and Post-Prison Supervision are not requirements for constitutionally adequate parole-exit interview under this statute. Rivas v. Board of Parole, 272 Or App 248, 356 P3d 83 (2015)

 

      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)

 

      Decision by Board of Parole and Post-Prison Supervision to postpone petitioner’s release that set out statute and rule authorizing board’s decision, criteria board was required by statute and rule to address and board’s decision based on criteria with reference to petitioner’s psychological evaluation satisfied “detailed bases” requirement of this section. Jenkins v. Board of Parole and Post-Prison Supervision, 356 Or 186, 335 P3d 828 (2014)

 

      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

 

      As used in this section, “reasonable cause” authorizes Board of Parole and Post-Prison Supervision to exercise discretion and establish standard, within confines of general policy of reasonable cause and this section, to determine whether prisoner is entitled to parole consideration hearing. Nulph v. Board of Parole, 279 Or App 652, 381 P3d 948 (2016)

 

      Where petitioner was found to continue to suffer from substance dependency and mixed personality disorder, to have not followed treatment recommendations and to present significant risk of committing additional violent, sexual acts but did not display specific symptoms in hearing, Board of Parole and Post-Prison Supervision did not err in deferring parole consideration because board is not limited to considering specific symptoms displayed only during hearing to determine whether, under 1985 version of this section, “condition which made the prisoner dangerous is absent or in remission.” Bell v. Board of Parole, 283 Or App 711, 391 P3d 907 (2017), 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

 

      144.315

 

NOTES OF DECISIONS

 

      This section does not authorize inmate to issue subpoena for appearance of witnesses at State Board of Parole and Post-Prison Supervision hearing. Smith v. Board of Parole and Post-Prison Supervision, 268 Or App 457, 343 P3d 245 (2015), Sup Ct review denied

 

      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)

 

      Where petitioner sought review of Board of Parole and Post-Prison Supervision decision that relied on psychological evaluation to postpone petitioner’s release under ORS 144.125 and board issued detailed administrative review response that upheld decision, board’s response was reviewable final order made within scope of board’s authority. Jenkins v. Board of Parole and Post-Prison Supervision, 356 Or 186, 335 P3d 828 (2014)

 

      Orders by Board of Parole and Post-Prison Supervision are not subject to ORS 183.470 (2) that require agency final orders to be accompanied by findings of fact and conclusions of law, but are subject to substantial reason standard of review in ORS 183.482 (8)(c), and board’s final order that cites psychological evaluation as basis for decision to postpone petitioner’s release meets substantial reason standard. Jenkins v. Board of Parole and Post-Prison Supervision, 356 Or 186, 335 P3d 828 (2014)

 

      This section explicitly imposes 60-day deadline for filing petition for judicial review with Court of Appeals, and deadline applies only to petition but not to service of petition on State Board of Parole and Post-Prison Supervision. Rivas-Valles v. Board of Parole and Post-Prison Supervision, 275 Or App 761, 365 P3d 674 (2015), Sup Ct review denied

 

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

 

NOTE: Repealed as of June 17, 2011

 

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)

 

      Statute has no application to authority of Board of Parole and Post-Prison Supervision to adopt rules allowing for parole release by juveniles convicted of aggravated murder. State ex rel Engweiler v. Felton, 350 Or 592, 260 P3d 448 (2011)

 

      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)