Burnett v. Lampert

• Decision Date: 25 April 2001
• Citation: 173 Or. App. 577,25 P.3d 337
• Parties: Marc A. BURNETT, Appellant, v. Robert LAMPERT, Superintendent, Snake River Correctional Institution, Respondent.
• Court: Oregon Court of Appeals

25 P.3d 337

173 Or. App. 577

Marc A. BURNETT, Appellant, v. Robert LAMPERT, Superintendent, Snake River Correctional Institution, Respondent.

(99-06-30570-M; CA A107946).

Court of Appeals of Oregon.

Argued and Submitted December 19, 2000.

Decided April 25, 2001.

Steven M. Stoddard filed the brief for appellant.

Judy C. Lucas, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before LANDAU, Presiding Judge, and LINDER and BREWER, Judges.

LINDER, J.

Plaintiff, an inmate at Snake River Correctional Institution, appeals from a judgment dismissing his petition for a writ of habeas corpus. In his petition, plaintiff alleged that he was unlawfully confined because the Board of Parole and Post Prison Supervision (Board) erroneously deferred his parole release date from 1999 to 2001, based on its finding that he suffered from a present severe emotional disturbance that caused him to be a danger to the health or safety of the community. We affirm.

Defendant moved to dismiss plaintiff's petition after issuance of the writ. See ORS 34.680(1) (motion to dismiss may be based on pleadings as well as supporting evidence); McClintock v. Schiedler, 123 Or.App. 334, 336, 859 P.2d 580 (1993) (motion to dismiss after issuance of habeas corpus writ is functional equivalent of summary judgment motion). The trial court granted the motion. We review the record in the light most favorable to the nonmoving party. Fort v. Palmateer, 169 Or.App. 568, 570, 10 P.3d 291 (2000).

The facts are not in dispute. Plaintiff is serving sentences for two first-degree rapes and a first-degree robbery committed in October 1987. Before the 1987 convictions, plaintiff had been convicted of kidnapping in California, of two counts of assault in Washington, and of battery and false imprisonment in Idaho. A number of plaintiff's offenses were committed while he was on parole. The Oregon crimes, for which plaintiff is serving sentences, involved two separate criminal episodes. In the first, plaintiff entered a store and robbed and raped an employee at knife point. In the second, plaintiff picked up a hitchhiker, raped her at knife point, and then indicated that he intended to anally sodomize her after he took a nap. The victim escaped while plaintiff took a nap, and plaintiff was apprehended shortly thereafter. He received 20 year sentences for each of the offenses. The Board overrode judicially imposed minimum sentences and established a prison term of 130 months, setting a parole release date of August 27, 1998. While serving his sentences, plaintiff violated a prison disciplinary rule by possessing contraband controlled substances in 1992. Plaintiff also violated a prison disciplinary rule in 1993 by engaging in drug smuggling, and, as a result, the Board extended his sentence for 12 months. In 1996, the Board indicated that, pursuant to ORS 144.223, it would schedule plaintiff for a psychological examination before his exit interview.

In 1998, plaintiff was evaluated by Dr. Starr, a licensed psychologist. Plaintiff revealed to Starr that his criminal history included the above-mentioned crimes, as well as offenses involving drug possession and delivery, passing bad checks, theft, and forgery. He also revealed that his California kidnapping offense had involved rape of the victim; that during both his Idaho and Washington offenses, he had attempted to rape his victims; and that he had sexually abused his younger sister when she was a child. Plaintiff indicated that he thought he had committed the offenses for which he was incarcerated because he was angry and on drugs. Plaintiff further indicated that he had not used drugs since 1993, that he attended church regularly, and that he had joined Promise Keepers.

Starr administered various tests, one of which showed a defensive profile and another of which yielded a profile of questionable validity. Starr indicated that people with profiles similar to petitioner's tend to view themselves in a positive light, are likely to experience significant drug problems, and have little motivation or tendency to seek psychological treatment. They see little need to change their behavior. Starr diagnosed plaintiff with a narcissistic personality disorder. Starr expressed concern about the fact that plaintiff showed an erotic preference for violence and that he had erectile and orgasmic problems associated with consensual sex. Starr also considered plaintiff at risk for explosive, aggressive behavior at times. Starr recommended that plaintiff engage in long-term psychotherapy focusing on the self-centered, exploitive features of his character structure. Starr observed that, on three prior occasions when plaintiff was paroled, he did not do well. Starr concluded that if plaintiff were to be released on parole, he should be in a structured halfway house environment for at least a year.

After a hearing, the Board, "based on all the information it [considered] at this hearing, [found] that the doctor's diagnosis coupled with all the information it is considering, [resulted] in a finding of a present severe emotional disturbance such as to constitute a danger to the health and safety of the community." The Board specified that it had considered the matter under the laws in effect at the time of plaintiff's crimes. On administrative review, the Board stated:

"In this case, the Board considered the evaluation performed by Dr. Starr along with all of the information before the Board at the time of the hearing. Dr. Starr diagnosed [plaintiff] with an Axis II narcissistic personality disorder. Dr. Starr noted that [plaintiff] had admitted raping six women and noted concerns about [plaintiff's] erotic preference for violence. Dr. Starr also noted that [plaintiff's] prior failures on parole suggest that he tends not to do well on the street."

The Board therefore deferred plaintiff's parole release date for two years based on ORS 144.125(3) (1991).

Plaintiff petitioned for a writ of habeas corpus, arguing that, for several reasons, the Board erred in deferring his parole. As noted, the trial court dismissed the action after issuance of a writ, on the equivalent of a summary judgment. On appeal, plaintiff reasserts the arguments he made in the trial court. Plaintiff's arguments are based on OAR 255-60-005 (1987), which was in effect at the times he committed the crimes for which he is incarcerated. OAR 255-60-005(1987) provided, in part:

"(1) At any time prior to a prisoner's scheduled parole release date, the Board may conduct a parole release hearing to review the prisoner's parole plan, psychiatric/psychological reports, if any, and conduct while in confinement. Pursuant to ORS 144.125, the Board may order any available psychiatric/psychological report(s) from the Corrections Division.

"* * * * *

"(7) If the record indicates that a psychiatric or psychological condition of severe emotional disturbance, such as to constitute a danger to the health or safety of the community, is present, the Board may order a psychiatric/psychological report to consider the deferral of the scheduled parole release until a specified future date.

"(a) The psychiatric or psychological evaluation shall be conducted to determine if a severe emotional disturbance still exists or is in remission. The evaluation provided may consist of a diagnostic study, including a comprehensive evaluation of the individual's personality, intelligence level, personal and social adjustments, or other pertinent data. The evaluation should include recommendations for treatment or medication that would assist the prisoner in performing satisfactorily in the community upon release."

Plaintiff first argues that, under OAR 255-60-005(7) (1987), the Board had no authority whatsoever to order a psychological evaluation of him.¹ He notes that, under that rule, the Board may order a psychological report "[i]f the record indicates that a psychiatric or psychological condition of severe emotional disturbance, such as to constitute a danger to the health or safety of the community, is present[.]" Thus, plaintiff reasons, the Board must have before it a record that indicates that a...