Howard v. State Bd. of Parole
| Decision Date | 23 January 1991 |
| Citation | 105 Or.App. 288,804 P.2d 509 |
| Parties | Clayton Lamont HOWARD, Petitioner, v. STATE BOARD OF PAROLE, Respondent. CA A51026. |
| Court | Oregon Court of Appeals |
Steven H. Gorham, Salem, argued the cause and filed the brief for appellant.
John A. Reuling, Jr., Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.
Petitioner seeks judicial review of a Board of Parole order re-setting his release date. He assigns as error the Board's consideration of his juvenile record in determining his matrix and its application of a rule and Or. Laws 1987, ch. 634, promulgated and enacted after he was sentenced, in violation of the Ex post facto Clauses of the state and federal constitutions. We affirm.
In 1982, petitioner was convicted of robbery, ORS 164.415, burglary, ORS 164.225, and three counts of rape. ORS 163.375. On each of the rape convictions, he was sentenced to 20 years, with a 10-year minimum, the sentence on one of them to be served consecutively to the others and concurrently with the 20-year sentence, with a 10-year minimum, imposed for the merged robbery and burglary convictions. At petitioner's initial parole hearing on July 22, 1982, the Board set his history/risk score at 2 and his matrix range at 120-170 months. A release date was set at the expiration of 240 months, September 14, 2001, because the Board did not override the minimum sentences.
On December 13, 1988, another review hearing was conducted after the passage of Or. Laws 1987, ch. 634, to reconsider petitioner's matrix range. The Board amended his history/risk score to 5 and, 1 changed his matrix range to 120-160 months, but refused to override his minimum sentences, thereby upholding his original release date.
Petitioner contends that the Board erred in considering certain of his juvenile adjudications in calculating his history/risk score and that, if it had not done so, the Board would have calculated a higher risk score, which would have lowered his matrix range, which, he contends, would have caused the Board to override the minimum sentences. The Board contends that, because it did not vote to override the minimum sentences, the computation of petitioner's history/risk score and matrix is irrelevant. That is not correct, because, as the court pointed out in Calderon-Pacheco v. Board of Parole, 309 Or. 454, 788 P.2d 1001 (1990), the matters that the Board must consider to make those determinations are relevant to its considering whether to override a minimum sentence. Be that as it may, the Board's rules, adopted pursuant to ORS 144.780(2)(b)(B), require the Board to consider juvenile adjudications of a person over 16 years of age, if the result was formal probation. OAR 255-35-015, Part II, Exh. B, Instr. 2, § (A); West v. Board of Parole, 86 Or.App. 616, 618-19, 739 P.2d 1096 (1987). Because petitioner was placed on formal probation when he was 16, that adjudication was relevant in determining whether he was dangerous to the public. See ORS 144.780(2)(b)(B). The Board did not err.
After recomputing petitioner's history/risk score, four members of the Board did not vote to overturn petitioner's minimum sentences. ORS 144.335(3). The Board did not violate any of its rules and did not fail to consider any mitigating factors offered by petitioner. Accordingly, it did not err. Calderon-Pacheco v. Board of Parole, supra.
When petitioner was sentenced in 1982, former OAR 255-40-005 provided:
"(1) Periodic reviews shall be conducted after the prisoner has served 5 years of his prison term and every three years thereafter, starting with the date the prisoner's sentence begins to run."
The new version, adopted in 1987, reads:
2
The rule in effect when petitioner was sentenced entitled an inmate to a hearing every three years. Under the new rule, a three-year review hearing is conducted only when there is a recommendation by the parent institution for a reduction in the inmate's prison term. Petitioner contends that the Board, in refusing to consider a reduction in his prison term at the December, 1988, hearing applied a new rule that took effect after his conviction, contrary to the ex post facto provisions of the Oregon 3 and federal 4 constitutions.
The ex post facto provisions of both constitutions are applied similarly. In interpreting the federal constitution, the Supreme Court has determined that two elements are necessary to trigger ex post facto analysis: First, the law must be retrospective; and, second, it must disadvantage the person affected by it. Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987). The second element is at issue here.
Although an administrative rule may give rise to an ex post facto problem, see Williams v. Board of Parole, 98 Or.App 716, 719, 780 P.2d 793 (1989), application of the new rule must result in increased punishment in order to trigger an ex post facto analysis. A mere procedural change will not suffice, unless the petitioner is, in some way, disadvantaged. Miller v. Florida, supra, 482 U.S. at 433, 107 S.Ct. at 2452 (quoting Hopt v. Utah, 110 U.S. 574, 590, 4 S.Ct. 202, 28 L.Ed. 262 (1884)). Williams v. Board of Parole was the first Oregon case to apply an ex post facto analysis to a Parole Board rule regarding release dates. There, a former rule had authorized the Board either to sustain all or to override all of an inmate's minimum sentences. The new rule authorized the Board to override one minimum and sustain another. We held that the new rule provided the Board with more flexibility to impose lesser sentences. Therefore, the...
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