Atkinson v. Bd. of Parole & Post-Prison Supervision

• Decision Date: 18 May 2022
• Docket Number: A166292
• Citation: 319 Or.App. 673,511 P.3d 408
• Parties: David Lee ATKINSON, Petitioner, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.
• Court: Oregon Court of Appeals

319 Or.App. 673

511 P.3d 408

David Lee ATKINSON, Petitioner,

v.BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.

A166292

Court of Appeals of Oregon.

Argued and submitted June 25, 2020.

May 18, 2022

Erik Blumenthal, Deputy Public Defender, argued the cause for petitioner. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Christopher Page, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Julia Glick.

Before Ortega, Presiding Judge, and Aoyagi, Judge, and Brewer, Senior Judge.^*

BREWER, S. J.

A jury convicted petitioner of aggravated murder, among other charges, committed in 1984, and he was sentenced to life in prison with the possibility of parole after 20 years. While incarcerated, petitioner committed further crimes in 1988, and he received additional indeterminate consecutive sentences for those crimes.

In 2008, the board determined that petitioner had met his burden of demonstrating that he was likely to be rehabilitated within a reasonable period of time, and it initially set petitioner's projected parole release date for June 28, 2013. The board held petitioner's first exit interview in 2012. Following that interview, the board postponed petitioner's projected release date for two years pursuant to ORS 144.125(3). The board held another exit interview in 2014 and again deferred his projected release date for two years. In March 2017, the board conducted a third exit interview with petitioner and again postponed petitioner's projected release date for two years, setting a new projected release date for June 28, 2019.

In this judicial review proceeding, petitioner challenges the board's 2017 deferral of his parole release date. Petitioner argues that the board erred in concluding, under ORS 144.125(3), that he had a present severe emotional disturbance (PSED) that constituted a danger to the health or safety of the community. The board filed an answering brief arguing that the board correctly deferred petitioner's release. While a reply brief was pending, petitioner was released from custody on June 28, 2019, with an active supervision review date of June 27, 2022.

The board then filed a motion to dismiss this case on the ground that it was moot as a result of petitioner's release. The board argued that no collateral consequences prevent this case from being moot. The board predicted that petitioner might argue that, had he been released earlier, he would have been eligible sooner for a possible change in his parole supervision status from active to inactive. The board argued that we previously have rejected that argument, holding that "the ‘mere possibility’ that the board might have changed an inmate from active to inactive supervision status and thus relieved the inmate from several conditions of parole" earlier does not prevent an appeal from becoming moot when the appellant is released from prison. See Miller v. Board of Parole , 275 Or. App. 844, 852, 365 P.3d 1136 (2015) ("mere possibility that the board might have earlier discharged [petitioner] from parole does not prevent [petitioner's] claim from becoming moot by reason of his release from prison"); see also Green v. Baldwin , 204 Or. App. 351, 357, 129 P.3d 734 (2006) (same).

In response to the board's motion to dismiss, petitioner conceded that this case is very similar to Miller. He nonetheless asserted that the case is not moot. He contended that dismissing it would permit the board to extend his period of active supervision for two years beyond what the law allows without holding a revocation hearing at which the board must find a parole violation. Petitioner's argument was based on the interaction among certain statutes and administrative rules in effect when he committed his 1984 offenses.¹

In particular, petitioner noted that former ORS 144.310(2) (1982), repealed by Or. Laws 1993, ch. 680, § 7, provided:

"(2) A paroled prisoner shall be subject to active parole supervision during the first six months of the period of parole. The board may require a more extended period of active supervision if, in a manner provided by rule, it finds that a six-month period of supervision is incompatible with the welfare of the parolee or of society. ***.

"(3) The board may extend or renew the period of active parole supervision or delay discharge of a parolee if it finds, in the manner provided in ORS 144.343, that the parolee has violated the conditions of terms of parole."

When petitioner committed his aggravated murder offense, former OAR 255-90-002 (Aug 1982) provided:

"Pursuant to ORS 144.310 the Board shall establish a discharge date from active supervised parole. The period of supervised parole shall be shown in the guideline matrix, Exhibit H–1, unless the Board provides written reasons for an extended supervision period. Extended supervision periods shall not exceed thirty-six (36) months."

Exhibit H-1, in turn, provided for one year of active supervision prior to discharge. "The guidelines set forth in Exhibit H-1 shall govern the establishment of discharge dates. *** For discharge to be effective, the parolee must display acceptable parole performance[.]" Former OAR 250-90-003 (Aug 1982). Finally, former OAR 255-90-015 (Aug 1982), set out the hearing rights contained in subsection (3) of former ORS 144.310 (1982):

"(1) In addition[ ] to the power of the Board to revoke parole, it may extend a discharge date one time for six months without a hearing and thereafter up to a one year period if the Board finds, after a hearing pursuant to Division 75,^[2] that the parolee has violated the conditions of parole.

"(2) Nothing contained in this rule shall be interpreted to preclude more than one extension of a discharge date by the Board. However, no extension of parole shall exceed the maximum term of sentence imposed by the court."

Based on those statutes and rules, petitioner's threshold argument against mootness was that the board lacked authority to impose an initial 36-month period of active supervision in its 2019 release order without holding a parole revocation hearing, and that order therefore should have provided for an initial one-year period of active supervision.³ Petitioner asserted that, if the 2019 order had been legally correct, he would have been discharged from active supervision no later than December 27, 2020 (that is, 18 months after his release on parole), rather than December 27, 2022 (that is, forty-two months after his release).⁴

As a fallback, petitioner argued:

"However, as petitioner argues on appeal, the board lacked substantial evidence to defer petitioner's release in March 2017. Because the board lacked substantial evidence, the relevant rules and statutes required the board to release petitioner to parole on his then-active release date of June 28, 2017. Rec 196. See Jones v. Bd. of Parole & Post-Prison Supervision , 283 Or. App. 650, 659-61, 391 P.3d 831, rev. den. , 361 Or. 543 (2017) (explaining that release is mandatory unless the board makes one of the findings required by statute). At that point, petitioner's 42-month clock would begin to run, and the board could not extend his active supervision beyond December 28, 2020, without holding a revocation hearing at and finding a parole violation."

Petitioner argued that, in contrast to the petitioner in Miller, he did not contest the board's authority over him for the duration of his life. Petitioner contended that his case is distinguishable from Miller because that case did not address a petitioner's right to a parole revocation hearing under former OAR 255-90-015 (1982). Petitioner argued that the cases relied upon in Miller involved different administrative rules that did not provide for the right to a parole revocation hearing. See Green v. Baldwin , 204 Or. App. 351, 129 P.3d 734 (2006) (involving the board's 1985 rules); Dunmire v. Board of Parole , 262 Or. App. 593, 325 P.3d 832 (2014) (involving an offense committed in 1986, after the board had amended former OAR 255-90-015 (1982) and deleted subsection (1) providing for a right to a revocation hearing and violation finding). Petitioner therefore reasoned that, despite the decisions in Miller , Green , and Dunmire , this case should not be dismissed as moot because dismissal "would not create the mere possibility that petitioner could be deprived of his right to a revocation hearing, it guarantees it." (Emphasis in original.) According to petitioner, if he complies with parole, he will currently be entitled to termination of active supervision no later than December 28, 2022. However, he asserts, if he prevails on judicial review, the board would not have been permitted to extend his active supervised parole beyond December 28, 2020, without holding a revocation hearing at which it must find a parole violation.

The Appellate Commissioner denied the board's motion to dismiss, reasoning that:

" Miller does not address the right to a revocation hearing at which the board must find a parole violation before extending the active period of parole supervision. Nor did the board, in response to petitioner's identification of collateral consequences—that his period of active supervision is extended two years beyond what it could be without such a hearing, if he prevails on judicial review—demonstrate that that asserted consequence ‘either does not exist or is legally insufficient.’ [ State v. K. G. B. , 362 Or. 777, 786, 416 P.3d 291 (2018) ]. Thus, the state has not met its burden. See State v. Stroud , 293 Or. App. 314, 316-18, 428 P.3d 949 (2018) (state did not meet its burden of demonstrating that appeal was moot)."

The Commissioner gave the board leave to raise the issue of mootness to the panel that considered this case on the merits. The board did not avail itself of that opportunity. However, under our independent authority to consider...