Norris v. Board of Parole

• Decision Date: 26 October 2000
• Citation: 13 P.3d 104,331 Or. 194
• Parties: Melvin R. NORRIS, Petitioner on Review, v. BOARD OF PAROLE AND POSTPRISON SUPERVISION, Respondent on Review.
• Court: Oregon Supreme Court

13 P.3d 104

331 Or. 194

Melvin R. NORRIS, Petitioner on Review, v. BOARD OF PAROLE AND POSTPRISON SUPERVISION, Respondent on Review.

(CA A85542; SC S45047)

Supreme Court of Oregon.

Argued and Submitted February 25, 1999.

Decided October 26, 2000.

Eric M. Cumfer, Deputy Public Defender, Salem, argued the cause and filed the briefs for petitioner on review. With him on the briefs were Sally L. Avera, Public Defender, and Andy Simrin, Deputy Public Defender.

Christine Ann Chute, Assistant Attorney General, Salem, argued the cause for respondent on review. Douglas F. Zier, Assistant Attorney General, Salem, filed the briefs. With him on the briefs were Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Judy C. Lucas, Assistant Attorney General.

Before CARSON, Chief Justice, and GILLETTE, Van HOOMISSEN, DURHAM, LEESON, and RIGGS, Justices.²

RIGGS, J.

The decision of the Court of Appeals is affirmed. The order of the Board of Parole and Post-Prison Supervision is reversed, and the case is remanded to the Board for further proceedings.

The issue in this case is whether, under the law in effect in 1978, the Board of Parole and Post-Prison Supervision (Board) had the authority to sustain petitioner's minimum terms of confinement after an affirmative finding that petitioner was likely to be rehabilitated within a reasonable period of time. The Court of Appeals reversed the Board's decision to sustain the minimum terms and remanded for further proceedings. Norris v. Board of Parole, 152 Or.App. 57, 67, 952 P.2d 1037 (1998). For reasons different from the Court of Appeals', we affirm the decision of that court and remand the case to the Board for further proceedings.

In 1979, a jury convicted petitioner of two counts of aggravated murder, ORS 163.095(2)(c) (1977) (multiple victims), and one count of attempted murder, ORS 163.115 (1977).³ The convictions arose out of crimes that petitioner committed in 1978. The trial court imposed two sentences of life without possibility of parole for 20 years for the two aggravated murder counts, the second sentence to be served consecutively to the first. For the attempted-murder count, the court imposed one 20-year sentence, to be served concurrently with the two life sentences.

On September 10, 1993, after having served 15 years, petitioner petitioned the Board for a "rehabilitation hearing" under ORS 163.105 (1977) (set out below). That statute provides, in part, that, for a person convicted of aggravated murder under ORS 163.095(2) (1977), the court must impose a minimum sentence of 20-years without possibility of parole. ORS 163.105 (1977) also provides that, after 15 years of that 20 year minimum term, such a prisoner is entitled to a rehabilitation hearing to determine if the prisoner is likely to be rehabilitated within a reasonable period of time. If the Board finds that the prisoner is capable of rehabilitation and that the terms of confinement should be changed to life imprisonment with the possibility of parole, or work release, it shall enter an order to that effect. As a result of such a hearing in this case, on January 26, 1994, the Board issued Board Action Form (BAF) 4,⁴ in which two of the three panel members found that petitioner could be rehabilitated within a reasonable period of time.⁵ Those two members would have set a firm parole release date of July 11, 2018, following approximately 40 years of incarceration. The Board concluded, however, that it needed a unanimous vote on the issue of rehabilitation and, thus, declined to set a parole release date. On administrative review, the Board decided that it needed only a majority vote, not a unanimous vote. Accordingly, the Board firmly set petitioner's parole release date for July 11, 2018.

On September 8, 1994, petitioner petitioned for judicial review in the Court of Appeals.⁶ After petitioner filed his brief in the Court of Appeals, the Board withdrew its order for reconsideration. See ORS 183.482(6) (1993) (permitting agencies to withdraw and reconsider administrative orders).

After two more hearings and several other BAFs, the Board issued BAF 9. In BAF 9, the Board first noted that it had not reconsidered its previous decision that petitioner was capable of rehabilitation within a reasonable period of time. The Board then applied the current sentencing matrix to petitioner, finding that he had a matrix range of 240 to 336 months, or 20 to 28 years.⁷ The Board also made findings on several aggravation and mitigation factors. Specifically, the Board found two aggravation factors: (1) that petitioner, through use of words, conduct, and a weapon, threatened death or physical injury toward witnesses; and (2) that the degree of injury was substantially greater than characteristic for the crime, in that the crime occurred in the presence of children and resulted in the deaths of two husbands/fathers. In mitigation, the Board found that petitioner had educated himself while in prison (petitioner received a bachelor of science degree from Western Oregon State College), had demonstrated a good work ethic, and had adjusted to prison life. Because the matrix range was less than petitioner's judicially ordered minimum terms of 40 years, the Board then considered whether it should alter his minimum terms of confinement:

"The Board unanimously sustained the judicially imposed minimum of 20 years as to each count, finding the term is an appropriate sanction for the criminal conduct and necessary for the protection of the public. In reaching this decision the Board considered and rejected a lesser minimum between 15-20 years as to each count."

Finally, the Board established petitioner's projected parole release date as August 5, 2018.

Petitioner sought administrative review of BAF 9. On June 24, 1996, the Board issued an administrative review response, in which the Board adhered to BAF 9. The Board explained:

"The Board treated this inmate the same as any inmate with a parolable life sentence. * * * The finding that he is capable of rehabilitation only allows for a sentence of life without the possibility of parole to be converted to a life sentence with the possibility of parole. It does not mandate parole. * * *

"This inmate has achieved a possibility of parole, not a guarantee. * * *"

Petitioner filed an amended petition for judicial review in the Court of Appeals. In his brief, he made two arguments in support of his contention that the Board erred by sustaining the 40-year period of incarceration. First, he claimed that the Board's order was based on an invalid sentence. Specifically, he argued that the trial court had no authority to impose consecutive minimum terms of confinement. Second, he argued that, because the Board found that he was capable of rehabilitation, his minimum terms were "nullified," and the Board had to apply the matrix system in setting a release date. In additional assignments of error, petitioner sought reversal of one of the Board's findings in aggravation and its failure to find additional mitigation.

In response, the Board first argued that petitioner could not attack collaterally his original sentence. Second, the Board interpreted ORS 163.105(4) (1977) to require two findings before the Board could alter any minimum term: (1) that petitioner was capable of rehabilitation and (2) that the terms of confinement should be changed to life with the possibility of parole. The Board argued that it had made the first, but not the second, of those required two findings. The Board concluded that its findings of aggravation and mitigation were surplusage, and that it had no authority to alter the 20-year minimum terms.

In its opinion, the Court of Appeals first held that petitioner could not attack collaterally his original sentence in this proceeding. Norris, 152 Or.App. at 62, 952 P.2d 1037. The court then turned to whether the Board had erred in sustaining petitioner's minimum terms. After examining the text, context, and legislative history of ORS 163.105(4) (1977), the court concluded that proving that a prisoner is "capable of rehabilitation" under ORS 163.105 (1977) includes proving that the terms of confinement should be changed: "[T]here is no `rehabilitation,' as that term is meant in ORS 163.105 [ (1977) ], if the prisoner has not proved that the terms of confinement should be changed." Id. at 65, 952 P.2d 1037. The Court of Appeals remanded for the Board to conduct a hearing in light of the court's interpretation of "rehabilitation." We allowed petitioner's petition for review.

We review the Board's order under ORS 183.482(8)(b) (1993). See Calderon-Pacheco v. Board of Parole, 309 Or. 454, 457, 788 P.2d 1001 (1990)

(so stating). That statute provides, in part:

"(b) The court shall remand the order to the agency if it finds the agency's exercise of discretion to be:

"(A) Outside the range of discretion delegated to the agency by law; [or]

" * * * * *

"(C) Otherwise in violation of a constitutional or statutory provision."

We first consider petitioner's argument that the Board improperly relied on an invalid sentence when establishing his parole release date. Petitioner argues that his original sentence is void because ORS 163.105(2) (1977) authorizes a trial court to impose one, and only one, minimum term of confinement. Petitioner contends that that is so regardless of the number of counts of aggravated murder for which a person has been convicted. Anticipating the Board's characterization of his argument as an improper collateral attack, petitioner argues that, as provided in ORS 144.335 (1993), he may challenge any board order that relates to parole dates. Alternatively, he argues that, because the sentencing court had no jurisdiction to impose consecutive minimum terms, this court may consider his present challenge.

We agree with the Court of Appeals and the Board that petitioner's argument is a collateral attack on his original sentence,...