Corgain v. Board of Parole

• Decision Date: 20 June 2007
• Docket Number: A118627 (Control).,A119635.
• Citation: 213 Or. App. 407,162 P.3d 990
• Parties: Richard W. CORGAIN, Petitioner, v. BOARD OF PAROLE AND POSTPRISON SUPERVISION, Respondent.
• Court: Oregon Court of Appeals

162 P.3d 990

213 Or. App. 407

Richard W. CORGAIN, Petitioner, v. BOARD OF PAROLE AND POSTPRISON SUPERVISION, Respondent.

A118627 (Control).

A119635.

Court of Appeals of Oregon.

Submitted on Remand October 19, 2006.

Decided June 20, 2007.

Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, and Daniel M. Carroll, Deputy Public Defender, Office of Public Defense Services, for petitioner.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Denise G. Fjordbeck, Assistant Attorney General, for respondent.

Before HASELTON, Presiding Judge, and ARMSTRONG and ROSENBLUM, Judges.

HASELTON, P.J.

These consolidated cases — one of which is on remand from the Oregon Supreme Court, see Corgain v. Board of Parole, 196 Or.App. 323, 100 P.3d 1144 (2004), rem'd, 341 Or. 548, 145 P.3d 1109 (2006) (Corgain I) — both present the same issue: When should petitioner begin serving a sentence for first-degree robbery that was ordered to be served consecutively to his life sentence for aggravated murder? For the reasons set forth below, we conclude that (1) the Board of Parole and Post-Prison Supervision (board) correctly determined that petitioner did not begin to serve his consecutive sentence at the time that the board determined that petitioner was likely to be rehabilitated within a reasonable length of time; and (2) the board subsequently properly applied ORS 144.125 (1981) in deferring petitioner's projected date of release from the service of his aggravated murder sentence. Consequently, we affirm the board's orders.

The material facts and procedural circumstances are uncontroverted. In August 1981, petitioner committed a first-degree robbery in Lane County. Several weeks later, he committed an aggravated murder in Klamath County. Petitioner was subsequently convicted of both crimes. On the murder conviction, he received a life sentence with a 20-year minimum; on the robbery conviction entered shortly thereafter, he received a 20-year indeterminate sentence, to be served consecutively to the aggravated murder sentence. Petitioner began serving his sentences in 1982.

In 1992, the board set a matrix term of 40 months for the robbery conviction, to be served consecutively to the term for the aggravated murder. In early 2002, the board held a rehabilitation hearing pursuant to ORS 163.105 (1981) and entered the order that is at issue in Corgain I. In that order, the board determined that petitioner was likely to be rehabilitated within a reasonable period of time, and further provided that petitioner's consecutive prison term for the first-degree robbery would begin to run on his to-be-established firm parole release date on the aggravated murder sentence. That order did not, however, establish a firm parole release date. Rather, it established a "projected release date" of July 2002,¹ before which the board would hold an exit interview and consider the results of a current psychological evaluation.

Petitioner unsuccessfully sought administrative review, and subsequently judicial review, of the board's order. As pertinent here, petitioner argued that, when the board made the finding at the rehabilitation hearing that he was likely to be rehabilitated within a reasonable time, it was required to set a firm parole release date at that point — and, under Norris v. Board of Parole, 331 Or. 194, 13 P.3d 104 (2000), cert. den., 534 U.S. 1028, 122 S.Ct. 562, 151 L.Ed.2d 437 (2001), the consecutive sentence on the robbery conviction should have commenced as of that date. We agreed and reversed in a per curiam opinion, citing Roy v. Palmateer, 194 Or.App. 330, 95 P.3d 1124 (2004). See Corgain I.

Meanwhile, as petitioner sought review of the board's first order, the board held another hearing pursuant to ORS 144.125 (1981), in which it considered a recent psychological evaluation of petitioner and found that petitioner suffered from a present severe emotional disturbance that constituted a danger to the health and safety of the community. See generally ORS 144.125 (1981). Based on that determination, the board deferred petitioner's projected parole release date on the aggravated murder sentence until 2004, and again noted that the consecutive 40-month term on the robbery would not begin to run until after the firm parole release date on the aggravated murder sentence.

Petitioner sought judicial review of that second order, and this court entered a stipulated order of abatement in that case (Corgain II) at the parties' request while the state sought review of this court's decisions in Roy and in Corgain I. Ultimately, the Oregon Supreme Court reversed, in Roy v. Palmateer, 339 Or. 533, 124 P.3d 603 (2005), and remanded Corgain I to us in light of its decision in Roy. We consolidated Corgain I (A118627) and Corgain II (A119635), as both involve the same core issue concerning when petitioner's consecutive sentence should begin to run.

On judicial review in both Corgain I and Corgain II, petitioner assigns error to the board's determination that the consecutive sentence would not begin to run until after the firm release date on the aggravated murder term, and, in Corgain II, to the board's application of ORS 144.125 (1981) in these circumstances. We write only to address those assignments of error, and reject without discussion petitioner's other assignments of error.

Because the statutes in effect at the time petitioner committed his crimes are materially the same as were at issue in Norris, and because the facts in this case resemble the facts in Norris, we begin with a discussion of that case. At that time, ORS 163.105 provided, in pertinent part:

"(2) When a defendant is convicted of murder defined as aggravated murder pursuant to subsection (2) of ORS 163.095, the court shall order that the defendant shall be confined for a minimum of 20 years without the possibility of parole, release on work release, temporary leave or employment at a forest or work camp.

"(3) At any time * * * after 15 years from the date of imposition of a minimum period of confinement pursuant to subsection (2) of this section, the State Board of Parole, upon the petition of a prisoner so confined, shall hold a hearing to determine if the prisoner is likely to be rehabilitated within a reasonable period of time. The sole issue shall be whether or not the prisoner is likely to be rehabilitated within a reasonable period of time. * * *

"* * * * *

"(4) If, upon hearing all the evidence, the board finds that the prisoner is capable of rehabilitation and that the terms of his confinement should be changed to life imprisonment with the possibility of parole, or work release, it shall enter an order to that effect. Otherwise the board shall deny the relief sought in the petition.

"(5) Not less than two years after the denial of the relief sought in a petition under this section, the prisoner may petition again for a change in the terms of his confinement. Further petitions for a change may be filed at intervals of not less than two years thereafter."

ORS 163.105 (1977).

In Norris, the petitioner received two consecutive life sentences pursuant to ORS 163.095(2) (1977), each without the possibility of parole for 20 years. After serving 15 years, the petitioner petitioned for a hearing pursuant to ORS 163.105 (1977), and the board made a determination that the petitioner was likely to be rehabilitated within a reasonable time. Norris, 331 Or. at 196-98, 13 P.3d 104. The board, however, nonetheless decided to sustain the judicially imposed minimum sentences of 20 years as to each crime. Id. at 199, 13 P.3d 104.

On judicial review, the petitioner contended that "in light of the Board's finding that he is capable of rehabilitation, the Board must convert the terms of his confinement to a parolable life sentence and set terms according to the matrix." Id. at 202, 13 P.3d 104. The board, on the other hand, argued that ORS 163.105(4) implicated a two-step process: first the board would determine if the petitioner was likely to be rehabilitated within a reasonable time, and if so, the board might then choose whether to override the minimum terms and set a release date according to the matrix. Id. at 202-03, 13 P.3d 104. The Oregon Supreme Court ultimately agreed in part with the petitioner, in light of the language in ORS 163.105(3) (1977) indicating that "the sole issue" at the hearing concerned rehabilitation, and ORS 163.105(5), which referred to the petitions for such hearings as petitions for "a change in the terms of [his] confinement." Id. at 203-04, 13 P.3d 104.

The analysis in Norris was straightforward to that point. However, the court then went on to state:

"If, at such a rehabilitation hearing, the prisoner proves by a preponderance of the evidence that the prisoner is likely to be rehabilitated within a reasonable period of time, then the Board must change the `terms of * * * confinement' — that is, the sentence imposed under ORS 163.105(2) (1977) for one aggravated murder — to life with the possibility of parole or work release.

"Applying that analysis to this case, we conclude that the Board must change the first of petitioner's life sentences to life with the possibility of parole or work release. Petitioner is entitled to have that change occur retroactively to January 26, 1994, the date that the Board found him to be capable of rehabilitation. On that date, petitioner began serving his second life sentence with a 20-year minimum term of confinement for his second conviction of aggravated murder. In 2009, 15 years from the date that he began serving that 20-year minimum term, petitioner may petition for a rehabilitation hearing, and that hearing also will be governed by ORS 163.105(3), (4), and (5) (1977). Only if the Board again finds that petitioner is capable of rehabilitation within a reasonable period of time, must the Board change petitioner's second aggravated murder sentence to life with the...