Forbus v. Bd. of Parole & Post-Prison Supervision

Citation309 Or.App. 296,482 P.3d 95
Decision Date10 February 2021
Docket NumberA162364
Parties Jimmie Arlyn FORBUS, Petitioner, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.
CourtCourt of Appeals of Oregon

Shawn Wiley, Deputy Public Defender, argued the cause for petitioner. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Jeff J. Payne, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Tookey, Presiding Judge, and Shorr, Judge, and Brewer, Senior Judge.*

BREWER, S. J.

On judicial review of an order of the Board of Parole and Post-Prison Supervision (the board) that set his prison term for aggravated murder, petitioner makes two assignments of error. In the first, he argues that the board erred by (a) assigning his crime's severity rating based on a matrix subcategory that was not in effect when he committed the offense; and (b) finding that the offense involved "cruelty to victim." In his second assignment of error, petitioner asserts that the board erred in excluding evidence of his rehabilitative efforts while incarcerated. For the reasons explained below, we reject petitioner's first assignment of error. However, because we agree with petitioner that the board—as it concedes—erroneously excluded evidence of his rehabilitative efforts, we vacate and remand the order on that basis.

FACTS AND PROCEDURAL HISTORY

On December 1, 1994, petitioner went to the residence of the victim, Gary Pagh. When the victim's mother answered the door, defendant shoved her out of the way and went inside. Petitioner found Pagh in a bedroom and attacked him "without any provocation," repeatedly stabbing him with a knife. Pagh's mother attempted to pull petitioner off of Pagh approximately three times. Petitioner threw her off, stabbed her "through the right forearm," and cut her right shoulder and the back of her head. Petitioner alternated between stabbing Pagh and his mother. At some point in the attack, Pagh's 76-year-old grandmother attempted to hit petitioner with a "souvenir baseball bat." Petitioner took the bat away from her, hit her on the head with it, and stabbed her in the chest. Petitioner then fled the scene.

Pagh was able to escape outside to the front of the house, where he collapsed. When police arrived, Pagh was lying in front of the house, with "multiple stab wounds," "covered in blood and look[ing] very pale." He was taken to the hospital, where he was pronounced dead. An autopsy showed that Pagh had bled to death. Petitioner had stabbed him 26 times, resulting in five wounds to the thorax, with lacerations of the lungs

and heart, five wounds to the abdomen, with lacerations of the stomach and retroperitonium, 13 wounds to the upper extremities, and three wounds to the lower extremities. Both Pagh's mother and grandmother survived their injuries.

The subsequent criminal investigation revealed that petitioner had become romantically involved with Pagh's estranged wife. There also was evidence that Pagh might have "snitched" to police about petitioner's possible drug dealings.

In July 1995, petitioner pleaded guilty to the aggravated murder of Gary Pagh. The court sentenced him to life imprisonment with a 30-year minimum prison term before being eligible for parole. In January 2015, the board held a murder review hearing pursuant to ORS 163.105(2) (1993).1 At the conclusion of the hearing, the board found that petitioner had met his burden to prove that he was likely to be rehabilitated within a reasonable period of time.

In June 2015, the board held a prison term hearing to set a projected parole release date for petitioner. Petitioner's criminal history included numerous felony convictions; based on that record, which petitioner did not challenge, the board found that petitioner's history risk score was "1" (poor).

The board rated the crime severity of the offense in category "8," which it based on an initial severity rating of 7 and a further finding of "cruelty to victim" under subcategory 1 of the board's matrix rule, which we discuss in detail below. That determination resulted in a sentencing matrix range of 288 months to life imprisonment. The board also found two aggravating factors: (1) "[v]erified instances of repetitive assaultive conduct; two prior assaultive convictions[;]" and (2) "[p]ersistent involvement in similar criminal offenses; attempted aggravated murder, assault I and robbery I." Based on the sum of its findings, the board set petitioner's prison term at 432 months, with a projected release date of January 12, 2031.2

Petitioner sought administrative review of the prison term decision. The board denied petitioner's requested relief, and petitioner now seeks judicial review.

STANDARD OF REVIEW

This court reviews board orders under the standards of review set out in ORS 183.482(8). See ORS 144.335(3) (so providing). As applicable here, ORS 183.482(8) provides:

"(a) The court may affirm, reverse or remand the order. If the court finds that the agency has erroneously interpreted a provision of law and that a correct interpretation compels a particular action, the court shall:
"(A) Set aside or modify the order; or
"(B) Remand the case to the agency for further action under a correct interpretation of the provision of law.
"* * * * *
"(c) The court shall set aside or remand the order if the court finds that the order is not supported by substantial evidence in the record. Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding."

To facilitate judicial review under those standards and to ensure that the board has complied with its statutory responsibilities, board orders must be accompanied by findings of fact and conclusions of law that demonstrate substantial reason. Jenkins v. Board of Parole , 356 Or. 186, 195, 335 P.3d 828 (2014). That is, the board "must articulate a rational connection between the facts [found] and the legal conclusions it draws from them." Id .

ANALYSIS

In his first assignment of error, petitioner argues that the board erred in rating his crime's severity in category 8, because (1) the subcategory—"cruelty to victim"—that the board used to do so was not in effect at the time of petitioner's crime; and (2) substantial evidence did not support the board's finding that the crime showed "cruelty to victim."

The board initially responds that petitioner did not exhaust his judicial remedies with respect to his argument that the board lacked authority to rate his crime's severity in category 8. See ORS 144.335(1)(b) (providing for judicial review of board order if petitioner "has exhausted administrative review as provided by board rule."); see also OAR 255-080-0008(1)(d) (requiring petitioner on administrative review to "specifically identif[y]" ways "the offender believes the Board's action to be in error"). Having reviewed the record, we reject the board's exhaustion argument under the applicable standard. See Tuckenberry v. Board of Parole , 365 Or. 640, 655, 451 P.3d 227 (2019) (taking prudential approach to issue exhaustion in board proceedings to impose special conditions of post-prison supervision); see also Schmult v. Board of Parole , 306 Or. App. 350, 355, 474 P.3d 920 (2020) (similarly applying Tuckenberry ).

Turning to the merits, petitioner's first argument is three-pronged: (1) The board was required to set his prison sentence in accordance with parole matrix rules that existed when he committed his offense in 1994; (2) the board lacked authority to rate the severity of his offense under crime category 8 by using subcategory 1, because that subcategory did not exist for aggravated murder when he committed his offense; and (3) the board therefore was required to rate the severity of the offense under crime category 7, pursuant to a rule that the board adopted in 1992. We review that argument for legal error, which requires consideration of the history of the statutes, board rules, and case law that govern setting prison terms for aggravated murder.

Under the sentencing matrix system adopted in 1977, although judges imposed criminal sentences, the legislature authorized the board to determine the actual duration of an inmate's imprisonment. Hamel v. Johnson , 330 Or. 180, 185-86, 998 P.2d 661 (2000) (under matrix system, parole release date set by board, not indeterminate sentence, establishes how long prisoner will be incarcerated). In setting the initial parole release date for a prisoner committed to the Department of Corrections, the board is required to "apply the appropriate range established pursuant to ORS 144.780." ORS 144.120(2) (1993). ORS 144.780(1) (1985) in turn directs the board to promulgate "rules establishing ranges of duration of imprisonment to be served for felony offenses prior to release on parole." To comply with that directive, the board has adopted rules for setting parole release dates. OAR 255-35-005, et seq . Those rules establish matrix ranges of months within which the board has discretion to set an offender's term of imprisonment. Hamel , 330 Or. at 186, 998 P.2d 661. Under the matrix rules, the range of a prison term is a function of the crime's severity rating and the inmate's criminal history/risk assessment score. OAR ch. 255, Exhibit C.

ORS 163.105(1)(a) (1993) provides that a person convicted of aggravated murder shall be sentenced to "death, life imprisonment without the possibility of parole or life imprisonment." Under paragraph (1)(c) of that statute, a sentencing court is required to order a person sentenced to life imprisonment to be "confined for a minimum of 30 years without the possibility of parole, release on work release or any form of temporary leave or employment at a forest or work camp." Paragraph (1)(c) notwithstanding, ORS 163.105(2) (1993)...

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2 cases
  • Lewis-Taylor v. Bd. of Parole & Post-Prison Supervision
    • United States
    • Court of Appeals of Oregon
    • 8 Noviembre 2023
    ...365 Or at 642 (proceeding to regular review after relaxing the administrative exhaustion requirement); Forbus v. Board of Parole, 309 Or.App. 296, 301, 482 P.3d 95 (2021) (same). We need not revisit that issue today because, under either plain-error review or regular review, petitioner's ar......
  • Watson v. Bd. of Parole & Post-Prison Supervision
    • United States
    • Court of Appeals of Oregon
    • 8 Noviembre 2023
    ...365 Or at 642 (proceeding to regular review after relaxing the administrative exhaustion requirement); Forbus v. Board of Parole, 309 Or.App. 296, 301, 482 P.3d 95 (2021) (same). An error is "plain" when it is an error of law, the legal point is obvious and not reasonably in dispute, and th......

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