Engweiler v. Board of Parole, CA A108469.

• Decision Date: 13 April 2006
• Docket Number: CA A108469.,SC S52165.
• Parties: Conrad ENGWEILER, Petitioner on Review, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent on Review.
• Court: Oregon Supreme Court

Page 910

133 P.3d 910

340 Or. 361

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

CA A108469.

SC S52165.

Supreme Court of Oregon.

Argued and Submitted September 8, 2005.

Decided April 13, 2006.

On review from the Court of Appeals.^*

Andy Simrin, Salem, argued the cause and filed the brief for petitioner on review.

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

Before CARSON,^** Chief Justice, and GILLETTE, DURHAM, RIGGS, De MUNIZ,^*** BALMER, and KISTLER, Justices.

GILLETTE, J.

This is one of two related cases, both decided this date, involving the life sentence that petitioner is serving. The dispositive issue in this case is whether a 1999 order of the Board of Parole and Post-Prison Supervision (the board) relating to that sentence that set both a "prison term" and a "murder review date" for petitioner was subject to judicial review under ORS 144.335 (1999), amended by Oregon Laws 2001, chapter 661, section 1; Oregon Laws 2003, chapter 352, section 1. The Court of Appeals ultimately concluded that it was not and, accordingly, dismissed petitioner's petition for judicial review. Engweiler v. Board of Parole, 197 Or.App. 43, 103 P.3d 1201 (2005) (Engweiler IV). We allowed review and now affirm the decision of the Court of Appeals.

In 1990, when petitioner was 15 years old, he raped, sodomized, and killed a 16-year-old female acquaintance. The juvenile court remanded petitioner to the adult court, where he was tried and convicted of aggravated murder, among other things. The trial court initially imposed a life sentence with a 30-year mandatory minimum term of imprisonment under ORS 163.105(1)(c) (1989), amended by Oregon Laws 1991, chapter 126, section 8; Oregon Laws 1995, chapter 421, section 2; Oregon Laws 1999, chapter 59, section 31; Oregon Laws 1999, chapter 782, section 5. On appeal, the Court of Appeals vacated that sentence because another statute, ORS 161.620 (1989), amended by Oregon Laws 1993, chapter 33, section 306; Oregon Laws 1993, chapter 546, section 119; Oregon Laws 1995, chapter 422, section 131y; Oregon Laws 1999, chapter 951, section 2, prohibited the trial court from imposing a mandatory minimum sentence on any person remanded from the juvenile court who had been under the age of 17 when the person committed the crime for which the person was remanded. See State v. Engweiler, 118 Or.App. 132, 846 P.2d 1163 (1993) (Engweiler I) (so holding). On remand, the trial court, in November 1994, imposed an indeterminate sentence of life imprisonment. Under such a sentence, petitioner was eligible for parole at some future date.

In June 1999, the board held a "prison term hearing," at the conclusion of which it issued Board Action Form (BAF) # 1. In BAF # 1, the board established a 480-month "prison term" for petitioner under a prison term matrix that it had established in May 1999 to deal specifically with juveniles who had been convicted of aggravated murder and sentenced to life imprisonment. BAF # 1 also set a "murder review date" of February 22, 2030, and provided that a "murder review hearing" would be scheduled in December 2029.

After unsuccessfully pursuing administrative review of BAF # 1, petitioner sought judicial review in the Court of Appeals. In that court, petitioner argued, among other things, that, in applying the 1999 matrix to set a 480-month "prison term," the board effectively had imposed on him a harsher penalty than would have been imposed on him at the time that he was convicted, even had he been an adult. Doing so, petitioner asserted, violated his state and federal constitutional right not to be subject to ex post facto laws under Article I, section 21, of the Oregon Constitution and Article I, section 10, of the United States Constitution. He also argued that doing so violated his rights under the Oregon privileges and immunities clause, set out in Article I, section 20, of the Oregon Constitution, the federal Equal Protection Clause set out in the Fourteenth Amendment to the United States Constitution, and the cruel and unusual punishments clause set out in Article I, section 16, of the Oregon Constitution.

The board moved to dismiss judicial review on the ground that BAF # 1 was unreviewable under ORS 144.335 (1999), set out post, the statute that then governed review of final board orders dealing with parole. Among other things, that statute generally eliminated judicial review of any order relating to a release date or a parole consideration hearing date, save for a subcategory of challenges to orders setting initial release dates in which a petitioner challenged the crime severity rating, criminal history score, or aggravation factors that the board had used to set that initial release date.

The Court of Appeals initially concluded that, because BAF # 1 set a "prison term" and thereby guaranteed petitioner's parole eligibility on a certain date, and because petitioner's objection to the board's use of the matrix to set his prison term essentially was a challenge to the crime severity rating, criminal history score, or aggravation factors that the board had used, petitioner's challenge to BAF # 1 was subject to judicial review under ORS 144.335 (1999). Accordingly, the Court of Appeals denied the board's motion to dismiss the petition for judicial review. Engweiler v. Board of Parole, 170 Or.App. 653, 13 P.3d 1009 (2000) (Engweiler II).

The Court of Appeals' review proceeded; both sides filed briefs, the case was argued, and the Court of Appeals took the matter under advisement. In January 2005, however, the Court of Appeals, on its own motion, reconsidered its earlier decision respecting jurisdiction and determined that its denial of the board's motion to dismiss had been incorrect. Upon further consideration of BAF # 1, together with an examination of the board's administrative rules, the court concluded that the board actually had not set an initial release date for petitioner, either when it set the 480-month "prison term" or when it set the February 22, 2030, "murder review date." Engweiler IV, 197 Or.App. at 47-50, 103 P.3d 1201. It followed, in the Court of Appeals' view, that BAF # 1 was not reviewable. Id. at 50, 103 P.3d 1201. The court therefore granted the board's motion to dismiss judicial review. Id. at 51, 103 P.3d 1201. We allowed petitioner's petition for review to address the question whether an order like BAF # 1 that is issued to a prisoner in petitioner's circumstances is subject to judicial review.

Both parties appear to agree that, in 1999, when the board issued BAF # 1, ORS 144.335 (1999) governed the availability of judicial review of board orders.¹ That statute provided, in part:

"(1) When a person over whom the State Board of Parole and Post-Prison Supervision exercises its jurisdiction is adversely affected or aggrieved by a final order of the board related to the granting, revoking or discharging of parole, * * * such person is entitled to judicial review of the final order.

"* * * * *

"(3) Notwithstanding subsection (1) of this section, the board's order is final and 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.)

We emphasize at the outset the narrow scope of our inquiry in this case. The sole issue before us is whether BAF # 1 was reviewable by the Court of Appeals under ordinary judicial review procedures pursuant to ORS 144.335 (1999). If it were not, this case is at an end. But such a holding, even if correct, would not necessarily mean that petitioner would be unable to vindicate any legal rights that he may have had vis-à-vis BAF # 1. See, e.g., State ex rel. Engweiler v. Cook, 340 Or. 373, 133 P.3d 904 (2006) (illustrating availability of other forms of judicial scrutiny).²

We begin our analysis with the text of ORS 144.335 (1999). By its express terms, section (1) of that statute limited the availability of judicial review to final board orders "related to the granting, revoking or discharging of parole." Strictly speaking, BAF # 1, which set petitioner's "prison term" and a "murder review date," was not such an order: It did not, by its terms, grant, revoke, or discharge petitioner on parole. Arguably, then, BAF # 1 was not subject to review under ORS 144.335 (1999).

It is true that BAF # 1 indirectly "related" to the granting of parole, at least to the extent that any order that somehow touched on any matter, circumstance, or condition that could be considered in connection with a prisoner's eventual eligibility for parole was an order "related" to the granting of parole. However, this case does not require us to determine the specific scope of that "related to" clause in ORS 144.335 (1999) because, to the extent that BAF # 1 can be said to be "related" to the granting of parole, it falls squarely within the category of orders "relating to a release date or a parole consideration hearing date" that expressly was excluded from review by ORS 144.335(3) (1999). Thus, by its text read in context, ORS 144.335(3) (1999) appears to be the complete answer to petitioner's effort to raise certain issues through the vehicle of judicial review of BAF # 1.

Petitioner argues that, notwithstanding the broad exclusion from judicial review set out in ORS 144.335(3) (1999), BAF # 1 is reviewable because it fell within a subcategory of orders that remained subject to judicial...