Janowski/Fleming v. Bd. of Parole and Post-Prison Supervision, (CA A130409; SC S057120, S057276); (CA A133967; SC S057245).

• Court: Supreme Court of Oregon
• Writing for the Court: GILLETTE
• Citation: 349 Or. 432,245 P.3d 1270
• Parties: Kenneth Frederick JANOWSKI, Petitioner on Review/Cross-Respondent on Review, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent on Review/Cross-Petitioner on Review. Ridge Wayne FLEMING, Respondent on Review, v. Board of Parole and Post-Prison Supervision, Petitioner on Review.
• Docket Number: (CA A130409; SC S057120, S057276); (CA A133967; SC S057245).
• Decision Date: 23 December 2010

245 P.3d 1270
349 Or. 432

Kenneth Frederick JANOWSKI, Petitioner on Review/Cross-Respondent on Review,
v.
BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent on Review/Cross-Petitioner on Review.
Ridge Wayne FLEMING, Respondent on Review,
v.
Board of Parole and Post-Prison Supervision, Petitioner on Review.

(CA A130409; SC S057120, S057276); (CA A133967; SC S057245).

Supreme Court of Oregon,
En Banc.

Argued and Submitted Jan. 5, 2010.
Decided Dec. 23, 2010.

245 P.3d 1271

On review from the Court of Appeals.^*

Denise G. Fjordbeck, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review/cross-petitioner on review and petitioner on review. With her on the brief was John R. Kroger, Attorney General.

Ryan T. O'Connor, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review/cross-respondent on review Janowski. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Ridge Wayne Fleming filed the brief for himself.

Ryan T. O'Connor, Deputy Public Defender, Salem, argued the cause and filed the brief for amicus curiae Office of Public Defense Services, Appellate Division. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Dennis N. Balske, Portland, filed the brief for amicus curiae Keven Roper.

GILLETTE, J.

349 Or. 435

These two cases, which we have consolidated for purposes of opinion, present two issues, both of which concern the proper interpretation and applicability of statutes and administrative rules that have long since been amended, but which continue to govern the treatment of prisoners who committed their crimes while those statutes and rules were in effect.¹ The first issue is whether the Board of Parole and Post-Prison Supervision (the board) has the authority effectively to override a prisoner's 30-year mandatory minimum sentence for aggravated murder and to release the prisoner after 20 years in prison, if the board finds that the prisoner is capable of rehabilitation within a reasonable period of time. If the answer to that first question is "yes," the second issue is: Which rules or statutes govern the board's release decision? The Court of Appeals concluded that the board does have the authority to override the mandatory minimum sentence and to release prisoners after 20 years if the board has made certain findings. However, the court concluded that the prisoners' cases should be remanded to the board to permit 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 Fleming ). We allowed the board's and the prisoners' petitions for review in both cases and now affirm the Court of Appeals' conclusion that the board has the authority to override the prisoners' 30-year mandatory minimum sentences for aggravated murder and to release

245 P.3d 1272

the prisoners after 20 years. However, because we further conclude that the legislature intended the board to apply the parole matrix (discussed in detail below) to determine when to release prisoners in this situation, we reverse that part of the Court of Appeals decisions remanding the cases to the board for a determination of applicable law.

The relevant facts of each case are procedural and are not in dispute. Prisoner Janowski murdered his parents

349 Or. 436

in February 1985. In July 1985, after Janowski pleaded guilty to those murders, a trial court convicted Janowski of two counts of aggravated murder and merged those counts into one conviction. Prisoner Fleming murdered a man during a robbery in November 1985 and a trial court convicted Fleming of aggravated murder in 1986. At the time that Janowski and Fleming committed their crimes, ORS 163.105(1) (1985) ² provided that a person convicted of aggravated murder

"shall be sentenced to death or life imprisonment * * *. If sentenced to life imprisonment, the court shall order that the defendant shall 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."
Both Janowski and Fleming were sentenced to life imprisonment. Pursuant to the directive in ORS 163.105(1) (1985), the trial courts ordered each of them to serve a mandatory minimum term of imprisonment of 30 years.

Both Janowski and Fleming were incarcerated in due course. In January 1986, the board issued an order with respect to Janowski establishing Janowski's matrix range ³ as 120 to 168 months but, at the same time, sustaining Janowski's 30-year (360-month) mandatory minimum

349 Or. 437

sentence. In February 1987, the board made a similar determination concerning Fleming, concluding that the applicable matrix range for Fleming's crimes was 228 to 288 months. In the board's order establishing that matrix range for Fleming, the board also concluded that it did not have the statutory authority to override the 30-year (360-month) mandatory minimum sentence that the trial court had imposed.⁴ On November 22, 1995, the board issued orders retracting its crime classification and matrix range calculations for both Janowski and Fleming, because it concluded that "aggravated murder is an unclassified felony; therefore, there is no crime severity rating or matrix range." ⁵

245 P.3d 1273

After Janowski and Fleming had been incarcerated for 20 years, they each sought a hearing under ORS 163.105 (1985), which, in addition to requiring the trial court in subsection (1) of the statute to impose a 30-year mandatory minimum sentence for persons sentenced to life imprisonment for aggravated murder, also provided that

"(2) At any time after 20 years from the date of imposition of a minimum period of confinement pursuant to subsection (1) of this section, the State Board of Parole, upon the petition of a prisoner so confined, shall hold a hearing to determine if the prisoner is likely to be rehabilitated within a reasonable period of time. The sole issue shall be whether or not the prisoner is likely to be rehabilitated within a reasonable period of time. * * *.

" * * * * *

349 Or. 438

"(3) If, upon hearing all the evidence, the board, upon a unanimous vote of all five members, finds 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, or work release, it shall 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 or work release. Otherwise, the board shall deny the relief sought in the petition."

Pursuant to that statute, in May 2005, the board conducted a hearing concerning Janowski and, in May 2006, a hearing concerning Fleming, to determine whether either man was likely to be rehabilitated within a reasonable period of time.⁶ At the conclusion of each hearing, the board unanimously found that each man had made the requisite showing and that the terms of confinement of each should be converted to life imprisonment with the possibility of parole, as provided in ORS 163.105(3) (1985). Accordingly, the board entered orders to that effect. In each case, however, the board set a release date for the prisoner at the conclusion of his 30-year mandatory minimum sentence. That is, the board set Janowski's release date for May 2015 and Fleming's for April 2016.

Each prisoner requested administrative review, arguing, among other things, that ORS 163.105(3) (1985) gave the board authority to override the statutorily mandated 30-year minimum sentence for aggravated murder upon a finding that a prisoner is likely to be rehabilitated within a reasonable period of time and, therefore, gave the board concomitant authority to release a prisoner before the 30-year mandatory minimum sentence had expired. They also argued that the laws in effect when they committed their crimes required the board to set a release date in accordance with the matrix ranges in effect on the date that they committed their crimes. In addition, Janowski argued that he was entitled to immediate release because, at the time of the board's finding of likelihood of rehabilitation and the consequent conversion of the terms of his imprisonment, he

349 Or. 439

already had been incarcerated longer than the matrix range for his crime. In each case, the board rejected the prisoner's claims and denied relief.

Janowski and Fleming each sought judicial review of the board's rulings in the Court of Appeals, which, as noted, held that the board did have authority to override the 30-year mandatory minimum sentences in these cases and to release the prisoner after 20 years of imprisonment, but remanded the cases to the board for a determination of which laws or rules govern the board's actual release decisions. The board seeks review of that part of the Court of Appeals decisions concluding that it has authority to override a 30-year mandatory minimum sentence for aggravated murder. Janowski and Fleming seek review of that part of those decisions remanding the

245 P.3d 1274

cases to the board to determine which rules govern release decisions. We turn first to the issue concerning the scope of the board's authority under ORS 163.105 (1985).

As did the Court of Appeals, we review the board's conclusion that it did not have authority under ORS 163.105 (1985) to override the 30-year mandatory minimum sentence for aggravated murder to determine whether the board erroneously interpreted that provision of law. We examine the terms of ORS 163.105 (1985) in an effort to discern the intent of the legislature in enacting it, using the methodology for statutory interpretation that this court explained in State v. Gaines, 346 Or. 160, 206 P.3d 1042 (2009).

As...