Engweiler v. Board of Parole

• Decision Date: 12 January 2005
• Citation: 103 P.3d 1201,197 Or. App. 43
• Parties: Conrad ENGWEILER, Petitioner, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.
• Court: Oregon Court of Appeals

103 P.3d 1201

197 Or. App. 43

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

A108469.

Court of Appeals of Oregon.

Argued and Submitted September 17, 2003.

Decided January 12, 2005.

Andy Simrin, Salem, argued the cause and filed petitioner's supplemental brief. Conrad Engweiler, pro se, filed petitioner's amended opening brief.

Janet A. Metcalf, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before HASELTON, Presiding Judge, and LINDER and WOLLHEIM, Judges.

LINDER, J.

Petitioner is in prison serving a life sentence for an aggravated murder that he committed in 1990. Because he was under 17 years old when he committed the crime, he was not subject either to a sentence of "true life" — i.e., life imprisonment without eligibility for parole — or to a mandatory minimum sentence.¹ Petitioner's life sentence, therefore, permits him to be paroled at any time, pursuant to the authority of the Board of Parole and Post-Prison Supervision (board). In 1999, the board held what is called a "prison term hearing" for petitioner and established for him a "prison term" of 480 months and a "review date" of February 22, 2030. Petitioner seeks judicial review of that order, challenging, on various grounds, his 480-month prison term.

After petitioner filed the petition for judicial review, the board moved to dismiss it, arguing that the challenged order is not subject to judicial review. By written opinion, we rejected the board's position and denied the motion to dismiss. Engweiler v. Board of Parole, 170 Or.App. 653, 13 P.3d 1009 (2000). Our review proceeded, with both sides briefing and arguing the merits, after which we took the case under advisement.

On further examination of the board's order on review, in combination with the board rules that specifically apply to parole decisions for inmates convicted of aggravated murder, we have determined that our initial disposition of the board's motion to dismiss was erroneous. Therefore, on our own motion, we reconsider our prior decision. As we explain below, we now grant the board's motion to dismiss and modify our prior decision accordingly.

ORS 144.335 (1999) governs our judicial review of the board order in this case.² Subsection (1) provides for judicial review of final orders of the board that relate to the granting, revoking, or discharge of parole:

"(1) When a person over whom the [board] exercises its jurisdiction is adversely affected or aggrieved by a final order of the board related to the granting, revoking or discharging of parole, the revoking of post-prison supervision or the imposition of conditions of parole or of post-prison supervision and after exhaustion of administrative review as provided by board rule, such person is entitled to judicial review of the final order."

Under subsection (3) of the statute, however, board orders relating to parole release dates or parole consideration dates are not reviewable, despite their finality and notwithstanding subsection (1), with one exception. Specifically, subsection (3) declares:

"(3) Notwithstanding subsection (1) of this section, the board's order is final and is not subject to judicial review when the board makes any decision relating to a release date or a parole consideration hearing date, including:

"(a) Setting an initial release date under ORS 144.120, except that the setting of an initial release date under ORS 144.120 remains subject to judicial review if the prisoner contests the crime severity rating, the history risk score or aggravation factors found by the board under the rules of the board."

(Emphasis added.) The net effect of those provisions is that, although board orders relating to the granting of parole are generally judicially reviewable, the legislature has excepted specific board orders from that group. In particular, board orders relating to a "release date" or a "parole consideration hearing date" are not judicially reviewable unless the board order actually sets an initial release date under ORS 144.120.

In its motion to dismiss in this case, the board asserted that its order does not set an initial release date for petitioner.³ In our original decision denying the board's motion, we concluded to the contrary, based on the fact that the order establishes petitioner's "prison term." We relied in part on the board's rules, which define a "prison term" as "[t]he Board established time the inmate must serve before the initial parole release date, in accordance with applicable laws and the Board's Administrative Rules." OAR 255-005-0005(41); Engweiler, 170 Or.App. at 657,13 P.3d 1009. We also relied on the board's statement, in its response to petitioner's request for administrative review, that its applicable rules were developed to "guarantee parole eligibility at a specified date appropriate to [his] case." Id. at 658, 13 P.3d 1009 (emphasis omitted). We concluded that, by establishing a "prison term" for petitioner, the board had set "an initial release date" within the meaning of ORS 144.335(3) (1999) and that its order therefore is judicially reviewable.⁴Id. We now conclude, however, that our decision was in error.

At the outset, it is helpful to distinguish between a "prison term" and an "initial parole release date," both of which are provided for and defined by board rule. An initial parole release date, as pertinent here, is the "date, by month, day and year, assigned to a prisoner for parole release based on the prisoner's matrix range[.]" OAR 255-005-0005(23). Matrix ranges are "[r]anges of months within which the Board has the discretion to set a prison term" and are based on crime severity ratings and criminal history and risk scores. See OAR 255-005-0005(29) (defining "matrix range"); OAR 255-005-0005(30) (defining "matrix"). "Prison term," finally, is defined as the "Board established time the inmate must serve before the initial parole release date." OAR 255-005-0005(41). As those general definitions suggest, ordinarily there is at least an initial correlation between an inmate's "prison term" and his or her "initial parole release date," because both are determined by reference to the inmate's particular matrix score. Despite that correlation, the "prison term" and the "initial parole release date" are not one and the same. They are, instead, determined by distinct and different decisions to be made by the board.

Under the board's rules, for most inmates subject to the board's parole authority, a "prison term hearing" results in a final order that establishes, among other things, both a "prison term" and a "parole release date." OAR 255-030-0055(2). But that is not true for inmates convicted of aggravated murder who are eligible for parole. A separate group of rules governs parole proceedings for that class of inmates. See generally OAR 255-032-0005-255-032-0025. Those rules cross-reference some of the general procedures for prison term hearings for other inmates, including OAR 255-030-0055(2), which requires the board to establish a prison term and a parole release date at a prison term hearing. OAR 255-032-0011(1). But those rules also specify differences in the prison term hearing procedures, including differences in the substance of the order that the board issues at the conclusion of the hearing. Of significance here, the rules state expressly that, in a prison term hearing for an inmate convicted of aggravated murder, the board will set a review date "rather than a parole release date." OAR 255-032-0005(1) and (4).⁵ Alternatively, the board may deny parole. OAR 255-032-0011(2).

If the board chooses to set a review date, that date triggers future proceedings to examine the inmate's fitness for parole. In particular, the board's rules provide that, five years before the review date, the board shall conduct a "progress review" to determine the "inmate's institutional conduct and rehabilitation efforts since the prison term hearing." OAR 255-032-0011(6). Before the scheduled review date, the board holds a review hearing. At that hearing, the board considers an extensive range of information bearing on the inmate's rehabilitation efforts, conduct, mental and emotional state, parole plan, and general suitability for parole. OAR 255-032-0011(8). After that review date, the board may set a parole release date for the inmate or the board may schedule a further review date. See OAR 255-032-0011(7) (the board "may determine a parole release date or future review dates any time after the established review date" (emphasis added)). In other words, pursuant to the applicable board rules, a " review date" is just that — a date on which the board is to review an inmate's progress for purposes of further decisions relating to the inmate's possible eventual parole. A review date is not a parole release date, initial or otherwise.

The order that the board entered in petitioner's case is consistent with those rules. The board determined that petitioner's individual crime and circumstances place him within a matrix range of 400 to 480 months. As required by OAR 255-032-0011(3), the board selected a prison term for petitioner within that range — i.e., 480 months. The board further established a review date (termed in the order a "murder review date") rather than a parole release date for petitioner. The board set the review date for February 22, 2030. Finally, the board declared that it will conduct a progress review five years before that date, pursuant to OAR 255-032-0011(6).

In our original decision denying the board's motion to dismiss, we took a wrong turn by focusing on the board's establishment of a "prison term" in petitioner's case without determining the significance of that "prison term" in the context of the board's order as a whole and the board's specific procedures for parole decisions in aggravated...