Barrett v. Bd. of Parole & Post-Prison Supervision, A177845

CourtCourt of Appeals of Oregon
Writing for the CourtJAMES, P. J.
Citation322 Or.App. 751
Docket NumberA177845
Decision Date23 November 2022

322 Or.App. 751

JACOB BARRETT, Petitioner,



Court of Appeals of Oregon

November 23, 2022

Submitted August 5, 2022.

Board of Parole and Post-Prison Supervision

Jacob Barrett fled the briefs pro se.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Christopher Page, Assistant Attorney General, fled the brief for respondent.

Before James, Presiding Judge, and Aoyagi, Judge, and Joyce, Judge.

OAR 255-040-0005(5) held invalid.


[322 Or.App. 752] JAMES, P. J.

In this rule challenge brought under ORS 183.400, petitioner challenges the validity of OAR 255-040-0005(5). According to petitioner, the Board of Parole and Post-Prison Supervision (the board) exceeded its statutory authority when it adopted OAR 255-040-0005(5) because, contrary to ORS 144.122, the rule specifically excludes inmates convicted of aggravated murder, including those for whom an initial parole release date has been set under ORS 144.120, from personal review eligibility. We conclude that the rule is invalid.

Under ORS 183.400, "any person may petition this court to determine the validity of a rule." Assn. of Acupuncture v. Bd. of Chiropractic Examiners, 260 Or.App. 676, 678, 320 P.3d 575 (2014) (internal quotation marks omitted). "In reviewing a rule challenge under [ORS 183.400], we may declare the rule invalid only if we conclude that it violates constitutional provisions, exceeds the statutory authority of the agency that adopted the rule, or was adopted without complying with rulemaking procedures." Id. (quoting ORS 183.400(4)). In well-written pro se briefing, petitioner contends that OAR 255-040-0005(5) directly conflicts with the provisions of ORS 144.122-the statute giving the board authority to create the rule.

It is necessary to establish some background on aggravated murder sentencing before we address petitioner's arguments. For a defendant convicted of aggravated murder under ORS 163.095, ORS 163.105(1)(a) provides three sentencing options: (1) life imprisonment; (2) life imprisonment without the possibility of release or parole; or (3) death. The jury determines whether there are "sufficient mitigating circumstances" for a life imprisonment sentence rather than life imprisonment without possibility of parole. ORS 163.150(3)(b).

If the defendant is sentenced to life imprisonment, then the court will order the defendant to be "confined for a minimum of 30 years without possibility of parole or release to post-prison supervision except as provided in ORS 144.397, and without the possibility of release on


[322 Or.App. 753] work release or any form of temporary leave or employment at a forest or work camp." ORS 163.105(1)(c). "At any time after completion of a minimum period of confinement pursuant to subsection (1)(c)," the defendant may petition the board to hold a "murder-review" hearing to determine if the defendant "is likely to be rehabilitated within a reasonable period of time," which the defendant has the burden of proving by a preponderance of the evidence. ORS 163.105(2), (2)(a); State v. Link, 367 Or. 625, 629, 482 P.3d 28 (2021) (referring to the hearing where the board makes a prisoner's rehabilitation determination as a "murder-review hearing").

If after the murder-review hearing the board determines that the defendant is likely to be rehabilitated within a reasonable period of time, then the board enters an order converting the sentence to "life imprisonment with the possibility of parole, release to post-prison supervision or work release." ORS 163.105(3). The board may also set a release date. ORS 163.105(3). However, ORS 163.105 is silent regarding how the board is supposed to determine the duration of confinement between the sentence conversion and the set release date.[1] State ex rel Engweiler v. Felton, 350 Or. 592, 625-26, 260 P.3d 448 (2011) ("ORS 163.105 [(1989)] does not authorize the board to take any action relating to a parole release date; the board's sole directive in that statute is to 'convert the terms of the prisoner's confinement to life imprisonment with the possibility of parole or work release.' ORS 163.105(3)."); see also Janowski/Fleming v. Board of Parole, 349 Or. 432, 446, 245 P.3d 1270 (2010) (observing that ORS 163.105 (1985) did not address how the board should determine the prisoner's length of confinement between sentence conversion and initial parole release date).[2]


[322 Or.App. 754] n Janowski/Fleming, the Supreme Court concluded that the "legislature intended that the board employ the matrix system to set release dates for those prisoners whom it * * * determined are capable of rehabilitation." Forbus v. Board of Parole and Post-Prison Supervision, 309 Or.App. 296, 303, 482 P.3d 95 (2021) (citing Janowski/Fleming, 349 Or at 446).[3] Petitioner, and the board, proceed from a position that changes in the statute did not displace that holding. Without argument from the parties to the contrary, we accept that premise. See Link, 367 Or at 632 (accepting, for purposes of the opinion, the state's understanding that, "at [sentence conversion] or 'shortly thereafter,' the board will establish defendant's sentence term pursuant to the matrix system and set defendant's release date").

Under the parole matrix system, the board applies appropriate matrix ranges pursuant to ORS 144.780 to set the defendant's initial parole release date. ORS 144.120(2); Engweiler, 350 Or at 625-26 (noting that, due to the lack of other statutory authority "for the board to set an initial release date for aggravated murderers entitled to parole consideration under ORS 163.105," ORS 144.120 provides the statutory authority for setting an initial parole release date for those convicted of aggravated murder entitled to parole consideration instead). Once the initial parole release date is set, the defendant is entitled to release on that date unless prior to that release date the board finds that one of the proscribed reasons to postpone the prisoner's release date exists. ORS 144.125(2) - (4); ORS 144.245(1).[4]


[322 Or.App. 755] With that background in mind, we turn to the question before us, which presents an issue of statutory interpretation. Our goal in construing a statute is to discern the intention of the legislature. State v. Gaines, 346 Or. 160, 171, 206 P.3d 1042 (2009); ORS 174.020(1)(a). ORS 144.122 allows the board to grant requests that the defendant's initial release date be reset to an earlier date and allows the board to adopt rules pertaining to that process. ORS 144.122 provides as follows:

"(1) After the initial parole release date has been set under ORS 144.120 and after a minimum period of time established by the State Board of Parole and Post-Prison Supervision under subsection (2)(a) of this section, the prisoner may request that the parole release date be reset to an earlier date. The board may

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