Fleming v. Board of Parole
| Decision Date | 11 February 2009 |
| Docket Number | A133967. |
| Citation | 202 P.3d 209,225 Or. App. 578 |
| Parties | Ridge Wayne FLEMING, Petitioner, v. BOARD OF PAROLE and Post-Prison Supervision, Respondent. |
| Court | Oregon Court of Appeals |
Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Jeff J. Payne, Assistant Attorney General, filed the brief for respondent.
Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and ROSENBLUM, Judge.
Petitioner, who was convicted of aggravated murder in 1986, seeks review of an order of the Board of Parole and Post-Prison Supervision (board) in which the board (1) concluded that petitioner was likely to be rehabilitated within a reasonable period of time, (2) altered his term of confinement to life imprisonment with the possibility of parole, and (3) set a projected parole release date in 2016, at which point petitioner will have served the judicially imposed 30-year minimum sentence for aggravated murder imposed pursuant to ORS 163.105(1) (1985).1 Petitioner argues that, 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 board was required, after finding that he was likely to be rehabilitated within a reasonable period of time, to establish a parole release date under what petitioner deems "the ordinary statutes and rules which otherwise govern the determination of an inmate's release from prison." As explained below, we conclude that the effect of the board's determination that petitioner could be rehabilitated within a reasonable period of time was to override the judicially imposed 30-year minimum sentence. Accordingly, we reverse the board's order and remand for further proceedings.
The pertinent facts are not in dispute. Petitioner was convicted in 1986 of an aggravated murder committed in November 1985. He was convicted of numerous other offenses committed at the same time, but the sentences on those crimes were to run concurrently with the aggravated murder sentence and are not at issue in the present case. The judgment provided that, pursuant to ORS 163.105, petitioner was to serve a life sentence for aggravated murder, with a minimum sentence of "Thirty (30) Years, with no possibility of parole, release on work release or any form of temporary leave or employment at a forest or work camp." During approximately the first 10 years of his confinement, petitioner had numerous disciplinary problems in prison, mostly related to his ongoing use of controlled substances. Beginning in approximately 1997, petitioner began receiving various forms of treatment and successfully completed a number of programs; at the time of his murder review rehabilitation hearing at issue in the present case, petitioner had been a model prisoner for approximately 10 years.
On May 17, 2007, the board held a rehabilitation hearing pursuant to ORS 163.105. Its consequent order stated, in part:
Petitioner sought administrative review, arguing that, after the board makes a finding that an inmate is likely to be rehabilitated, the inmate should then become eligible for parole release. He further argued that, after the board makes a finding of likely rehabilitation and changes the term to life with the possibility of parole, the board is required to set a prison term pursuant to its "matrix rules" that were in effect at the time of the crime.2 On administrative review, the board upheld its decision, concluding that (1) ORS 163.105 did not permit it to, in effect, override petitioner's 30-year statutory minimum sentence for aggravated murder, and (2) the matrix system did not provide for determining a matrix-based parole release date for inmates serving sentences for aggravated murder.
Petitioner seeks judicial review of the board's order. As explained below, we conclude that petitioner is correct that the board's finding that he was likely to be rehabilitated did, in effect, override the 30-year minimum sentence. However, we also conclude that the board is correct that its matrix system did not contain provisions governing parole consideration for aggravated murderers who had been deemed by the board likely to be rehabilitated. Given those conclusions, we must remand to the board for further proceedings.
At the time of petitioner's offense, ORS 163.105 provided:
As noted above, petitioner was sentenced pursuant to the second sentence of ORS 163.105(1): "If sentenced to life imprisonment, the court shall order that the defendant shall be confined for a minimum of 30 years without possibility of parole, release or work release or any form of temporary leave or employment at a forest or work camp."
Pursuant to ORS 163.105(2), petitioner sought a rehabilitation hearing, for the board "to determine if the prisoner is likely to be rehabilitated within a reasonable period of time." And pursuant to ORS 163.105(3), the board did, in fact, conclude that petitioner was likely to be rehabilitated within a reasonable period of time, and therefore it entered an order to "convert the terms of the prisoner's confinement to life imprisonment with the possibility of parole or work release."
In short, there is no dispute that the board accurately followed the statute to that point. The question presented here is whether, once the board "convert[s] the terms of the prisoner's confinement to life imprisonment with the possibility of parole or work release," an inmate becomes eligible for parole before 30 years have been served, as petitioner contends, or whether the conversion of the sentence simply means that the inmate will be eligible for parole after serving the 30-year statutory minimum term.
The resolution of that question is a matter of statutory construction, to which we apply the familiar methodology of PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993). Under the methodology of PGE, our polestar is legislative intent. In discerning that intent, we first examine the text and context, which includes other provisions of the same statutory scheme and other related statutes, and apply rules of statutory construction that bear directly on the interpretation of the statutory provision at issue. If, after examining the statute in context, we determine that its meaning is ambiguous, we examine the legislative history to attempt to resolve the ambiguity. Finally, if the statutory text remains ambiguous, then we resort to general canons of statutory construction. Id. "Ambiguity" means there are at least two reasonable interpretations of the statutory terms. State v. Cooper, 319 Or. 162, 167, 874 P.2d 822 (1994). A reasonable interpretation is one that is not "wholly implausible." Owens v. MVD, 319 Or. 259, 268, 875 P.2d 463 (1994).
The text of subsection (1), standing alone, is quite clear. Once a defendant has been convicted of aggravated murder but not sentenced to death, the court "shall order that the defendant be confined for a minimum of 30 years without possibility of parole." ORS 163.105(1). That is, the court is required to enter a judgment indicating that the defendant must be confined for a minimum of 30 years without parole.
Subsection (2) is equally clear: Any time after 20 years from the date the court ordered confinement for a minimum of 30 years without the possibility of parole pursuant to subsection (1), the prisoner can seek a rehabilitation hearing.
The difficulty arises when subsection (3) is read in the context of the previous two subsections: Under subsection (3), once the board has found that the prisoner is capable of rehabilitation and that "the terms of the prisoner's confinement should be changed to life imprisonment with the possibility of parole," then the board is to "enter an order to that effect and the order shall convert the terms of the prisoner's confinement to life imprisonment with the possibility of parole...
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Janowski/Fleming v. Bd. of Parole and Post-Prison Supervision
...the board to determine in the first instance what rules and statutes govern the board's release decisions. Fleming v. Board of Parole, 225 Or.App. 578, 202 P.3d 209 (2009); Janowski v. Board of Parole, 226 Or.App. 82, 202 P.3d 920 (2009) (reversing and remanding per curiam in light of Flemi......
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Walton v. Bd. of Parole and Post-Prison Supervision
...a person convicted of aggravated murder could be released. Id. To similar effect is our more recent decision in Fleming v. Board of Parole, 225 Or.App. 578, 202 P.3d 209, rev. allowed, 346 Or. 361, 211 P.3d 930 (2009). In that case, the petitioner had been convicted of aggravated murder in ......
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Janowski v. Board of Parole and Post-Prison Supervision, A130409.
...Petitioner's assignment of error is controlled by our reasoning and the legislative history discussed in Fleming v. Board of Parole, 225 Or.App. 578, 202 P.3d 209 (2009), and, for the reasons set forth in Fleming, we reverse and remand this case so that the board may reevaluate which, if an......