Norris v. Board of Parole and Post-Prison Supervision, POST-PRISON

• Decision Date: 07 January 1998
• Docket Number: POST-PRISON
• Citation: 152 Or.App. 57,952 P.2d 1037
• Parties: Melvin R. NORRIS, Petitioner, v. BOARD OF PAROLE ANDSUPERVISION, Respondent. CA A85542.
• Court: Oregon Court of Appeals

Page 1037

952 P.2d 1037

152 Or.App. 57

Melvin R. NORRIS, Petitioner, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.

CA A85542.

Court of Appeals of Oregon.

Argued and Submitted July 23, 1997.

Decided Jan. 7, 1998.

Eric M. Cumfer, Deputy Public Defender, argued the cause for petitioner. With him on the briefs was Sally L. Avera, Public Defender.

Christine A. Chute, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Virginia L. Linder, Solicitor General.

Before De MUNIZ, P.J., and DEITS, C.J., ^* and HASELTON, J.

De MUNIZ, Presiding Judge.

In this petition for judicial review, petitioner seeks reversal of an order of the Board of Parole and Post-Prison Supervision (Board) setting his parole release date for August 2018. ¹ We reverse and remand.

In 1978, petitioner was convicted of two counts of aggravated murder under ORS 163.095(2)(c) (multiple victims). ² The court imposed life sentences without possibility of parole for 20 years for each conviction, to be served consecutively. ³ Under the statutory scheme for aggravated murder, ⁴ the Board's only authority to alter a minimum term is under ORS 163.105(3) to (6), which express "a complete legislative policy." Severy v. Board of Parole, 318 Or. 172, 179, 864 P.2d 368 (1993).

The Board acknowledges that, even for prisoners with consecutive sentences and consecutive minimum terms, ORS 163.105 provides that, on a prisoner's petition at any time after 15 years from the date of the imposition of the minimum term, the Board must hold a hearing. Severy, 318 Or. at 179, 864 P.2d 368. The sole issue at the hearing is whether the prisoner is "likely to be rehabilitated within a reasonable period of time," and the petitioner bears the burden of proof on that issue. ORS 163.105(3). Only if the Board finds that the prisoner is capable of rehabilitation may the Board change the terms of the prisoner's confinement to life imprisonment with the possibility of parole or work release. ORS 163.105(4); Id.

The rehabilitation hearing occurs only in the context of a conviction for aggravated murder, which always carries a minimum term of confinement. As the Board explains:

"A person convicted of aggravated murder in 1978 received a mandatory life sentence, like anyone convicted of murder at that time. ORS 163.115(5) (1977). For those convicted of aggravated murder, the court was also required to impose a minimum sentence and 'order that the defendant shall be confined for a minimum of 20 years without possibility of parole, release on work release, temporary leave or employment at a forest or work camp.' ORS 163.105(2) (1977). Note that offenders convicted of aggravated murder were not sentenced to life in prison without the possibility of parole; they were sentenced to life in prison with the possibility of parole, but only after serving 20 years." (Emphasis the Board's.)

Thus, a hearing under ORS 163.105 is only about whether the minimum term of confinement should be eliminated.

Following petitioner's rehabilitation hearing here, a majority of the Board found that petitioner was capable of rehabilitation within a reasonable period of time. However, the Board "sustained the judicially imposed minimum of 20 years as to each count." Petitioner assigns error to the 40-year period of incarceration. He argues that the Board erred in holding that it had the discretion to set his minimum period of confinement between 30 and 40 years without resort to the matrix when it found that he was capable of rehabilitation.

Before turning to petitioner's assignment of error, which raises an issue of law, we must first address his preliminary contention that the trial court acted beyond the authority given to it by ORS 163.105(2) in imposing multiple minimum terms of confinement. The Board argues that petitioner is collaterally attacking his sentence, which, it contends, he cannot do in this administrative proceeding. The Board argues that, because petitioner did not raise the legality of his sentence in his direct appeal, claim preclusion precludes him from now asserting it, and that post-conviction proceedings provide the exclusive method for challenging sentences.

Petitioner responds that, in the "narrow circumstances" presented here, he may collaterally attack his sentence. He argues that claim preclusion does not apply in criminal cases. See State v. Stanford, 111 Or.App. 509, 512 n. 3, 828 P.2d 459 (1992) (court does not decide if preclusion doctrines can be applied against a defendant in a criminal proceeding). He contends that, if the circuit court lacked authority to impose consecutive minimum terms, it acted beyond its jurisdiction, and the effect of permitting a challenge to his sentence only in post-conviction proceedings means that the Board would have to uphold a void judgment.

Petitioner cites Sommers v. Board of Parole, 69 Or.App. 8, 683 P.2d 1037 (1984), for support of his proposition that, if a court orders execution of a sentence in excess of that allowed by law, the judgment may be collaterally attacked. In Sommers, following the petitioner's conviction of murder and sentence of life imprisonment with a minimum term of 10 years, she sought review of a Board order setting a parole release date. Her only argument was that the Board had abused its discretion. However, sua sponte, we noted that the Supreme Court had recently decided State v. Macy, 295 Or. 738, 671 P.2d 92 (1983), in which it held that the legislature had not provided a minimum sentence for murder. Accordingly, under Macy, the petitioner's 10-year minimum sentence was void, and we remanded to the Board for reconsideration of the release date without taking into account the 10-year minimum sentence.

Sommers does not advance petitioner's position here. We did not hold that the petitioner could litigate her sentence in the administrative proceeding, and, indeed, we noted that the petitioner's "sentence may not be modified or vacated in this proceeding[.]" 69 Or.App. at 9, 683 P.2d 1037. Our remand was based on the recognition that a point of law, which had become settled after the Board had acted, affected the Board's decision. Unlike the situation in Macy, petitioner here does not cite settled authority holding that the circuit court could not impose consecutive minimum terms under ORS 163.105(2).

Irrespective of whether claim preclusion applies in a criminal proceeding, we agree with the Board that petitioner cannot collaterally attack his sentence in this proceeding. On direct appeal, petitioner did not challenge the authority of the court to impose consecutive minimum terms, and a petition for post-conviction relief is the sole method for collaterally challenging the lawfulness of the sentence. ORS 138.540(1) ⁵; Mora v. Maass, 120 Or.App. 173, 176, 851 P.2d 1154 (1993), aff'd 319 Or. 570, 877 P.2d 641 (1994).

We turn to petitioner's contention that the Board erred in "sustaining" the judicially imposed 40-year term of confinement. At issue is ORS 163.105(4), which provides:

"If, upon hearing all the evidence, the board finds that the prisoner is capable of rehabilitation and that the terms of his confinement should be changed to life imprisonment with the possibility of parole, or work release, it shall enter an order to that effect. Otherwise, the board shall deny the relief sought in the petition."

Petitioner argues that, under the statute, once the Board found that he was capable of rehabilitation, that finding "nullified" his minimum terms, and the Board had to apply the matrix in setting a release date.

The Board characterizes the language of ORS 163.105(4) as, "at least initially, a bit confusing." It argues, however, that the correct interpretation of ORS 163.105(4) requires the Board to make two findings after a rehabilitation hearing: It must find that the prisoner is capable of rehabilitation and that the prisoner's sentence "should be changed." It argues that, if the second finding is not made, the matrix does not apply and that here the Board did not find that petitioner's terms of confinement should be changed.

Petitioner counters that we should not address the Board's argument, which was not made to the Board. Indeed, the "confusing" wording of ORS 163.105(4) has been further obfuscated by the Board's shifting interpretations of it. The Board originally concluded that it had to set petitioner's confinement at a minimum of 40 years regardless of any findings it made. Accordingly, it issued an order finding that petitioner could be rehabilitated within a reasonable period of time but set a release date after the 40-year term. Then apparently deciding that, in fact, it did not have to apply the judicial minimum, the Board withdrew its order. When petitioner appeared before the Board at the hearing on reconsideration, the Board took the position that it considered petitioner to be a parolable life-sentenced inmate but that it was not required to put petitioner in the matrix. Although petitioner has been placed at a disadvantage by the Board's shifting positions, nonetheless, the Board has no authority to alter a minimum term unless provided for in ORS 163.105. Severy, 318 Or. at 179, 864 P.2d 368. The correct interpretation of the statute has always been central to this case, and petitioner has answered the Board's new argument in a responding brief, filed with leave of the court. Accordingly, under these circumstances, we address the Board's argument.

The Board argues that ORS 163.105(4) authorizes it to allow for the possibility of parole before the end of the minimum sentence but does not compel a change in the terms of confinement. That interpretation is supported by the use of the conjunctive "and" in ORS 163.105(4): The Board shall enter an order changing the terms of confinement "[i]f * * * the board finds that the prisoner is capable of rehabilitation and that the terms of his...