Rise v. Board of Parole

• Decision Date: 24 November 1987
• Parties: Erik Christian RISE, Petitioner on Review. v. BOARD OF PAROLE, Respondent on Review. CA A39343; SC S34089.
• Court: Oregon Supreme Court

Page 1210

745 P.2d 1210

304 Or. 385

Erik Christian RISE, Petitioner on Review. v. BOARD OF PAROLE, Respondent on Review.

CA A39343; SC S34089.

Supreme Court of Oregon,

In Banc.

Argued and Submitted Sept. 3, 1987.

Decided Nov. 24, 1987.

Lawrence Matasar, Portland, argued the matter and filed the petition on behalf of the petitioner on review. With him on the petition was Hoffman, Matasar & Glaeser, Portland.

J. Scott McAlister, Asst. Atty. Gen., Salem, argued the matter on behalf of the respondent on review.

GILLETTE, Justice.

This case involves the effect, if any, that a plea agreement between a criminal defendant and a district attorney can have on the Board of Parole's subsequent decisions regarding the defendant's parole date. The Board in the present case determined that it was not "bound" by the terms of such a plea agreement, and the Court of Appeals affirmed without opinion. Rise v. Board of Parole, 84 Or.App. 741, 735 P.2d 380 (1987). We hold that the Board was not bound by the terms of the plea agreement and that it did not err in refusing to enforce the agreement. Accordingly, we affirm.

Petitioner and his co-defendant, Troy Stewart, each were charged with two counts of aggravated murder, ORS 163.095, in connection with the death of Ralph Anderson. Elaborate pretrial negotiations between the district attorney and petitioner's attorney culminated in a plea agreement with the following pertinent provisions:

"The purpose of this agreement is to secure the cooperation of Mr. Rise in the prosecution and conviction of Troy Stewart. The State of Oregon is entering into this agreement because, although Mr. Rise is fully and completely guilty of the offenses he is charged with, his role in these offenses was secondary and subsidiary to the role of Troy Stewart.

"Mr. Rise agrees to meet with authorities from state law enforcement at such reasonable times and places as they may deem necessary to tell honestly, truthfully, and completely all he knows about the crimes set forth above and these persons involved in those crimes. He also agrees to appear at any grand jury, trial proceeding, or any other court proceeding in connection with these crimes and to testify fully and truthfully.

"In return for Mr. Rise's fulfilling each and every obligation of this agreement, the State of Oregon agrees to:

"1. Allow Mr. Rise to stipulate to the facts on a charge of Murder based on this incident. This stipulation will occur after trial or plea in State v. Stewart, supra.

"2. Not oppose Mr. Rise's truthful statement that he knew the victim, Mr. Anderson. The purpose of this portion of this agreement is to assure that this crime is treated as a subcategory 2 Murder by the Oregon Board of Parole, thereby setting Mr. Rise's range at 10-13 years.

"3. To send a statement to the Oregon Board of Parole requesting that Mr. Rise serve 10 years. If Mr. Rise requests that the State provide the Parole Board with additional information or appear in person before the Parole Board, the State will do so.

"4. To permit Mr. Rise to continue with the appeal of the remand proceedings which resulted in this case being sent to adult court.

"These four obligations are the only obligations imposed on the State of Oregon by this agreement." (Emphasis supplied.)

On July 17, 1985, petitioner entered a guilty plea to one count of murder, ORS 163.115, and was sentenced to life imprisonment. In accordance with the plea agreement, petitioner provided the district attorney with a detailed account of the crime. According to petitioner, that statement was included in a Parole Analysis Report, which was submitted to the Board of Parole. Petitioner's attorney requested that a new Parole Analysis Report be prepared without the inclusion of petitioner's statement because, under the terms of the plea agreement, the district attorney should not have submitted the statement to the Board. In response, the Board issued a Board Action Form that stated, in part:

"The Board is not bound by any agreement the D.A.'s office makes. If the material is relevant, the Board will make use of it. * * *."

Based on the facts set out in the Parole Analysis Report, the Board concluded that petitioner had engaged in "significant planning" in committing the murder. Therefore, and in spite of the fact that petitioner knew the victim, the Board classified petitioner's crime as a "Subcategory 1" murder, and set his matrix range at 120 to 168 months (10 to 14 years). ¹

Petitioner sought judicial review of the Parole Board decision, arguing, inter alia, that the Board erred in failing to honor the district attorney's promises that petitioner's crime would be treated as a "Subcategory 2" murder and that the district attorney would not submit any information to the Board except a request that he be paroled after 10 years, unless petitioner requested additional information. The Court of Appeals affirmed without opinion. We allowed review to consider the effect of a district attorney's promises in a plea agreement on subsequent decisions by the Board of Parole.

It is important at this juncture to emphasize precisely what kind of case confronts us. This is a case of judicial review of a decision of the Board of Parole. By statute, our review in such cases is limited to whether the Board committed one or more legal errors of a particular kind. ORS 144.335(3); 183.482(8); ² see also Price v. Board of Parole, 301 Or. 393, 723 P.2d 314 (1986). The Board is not a trial court of general and equitable jurisdiction, authorized to conduct broad fact-finding hearings on issues extraneous to its specifically prescribed functions and, in reviewing the Board's actions, neither are we.

Petitioner first argues that the plea agreement included a promise by the district attorney that the Board would treat petitioner's crime as a Subcategory 2 murder. We have some difficulty with this assertion because it selects an interpretation of paragraph 2 of the plea agreement which, while reasonable, is not the only possible reading or, indeed, even necessarily the most likely reading. While the district attorney promised to inform the Board of Parole that petitioner met one of the criteria that would take him out of Subcategory 1 of OAR 255-35-010, Exhibit A, in order "to assure that this crime is treated as a Subcategory 2 murder," there is no mention of the other criteria petitioner also had to meet to achieve this goal. The extent of the district attorney's obligation is unclear. A factual hearing on the actual negotiations between the parties and their understanding of the agreement would clear up this ambiguity, but the Board is not normally thought of as being in the business of holding such hearings. See ORS 144.110 et seq. For the purposes of this opinion, however, we will assume, without deciding, that petitioner's reading of the plea agreement is correct. Petitioner argues that the Board of Parole was bound by that agreement and that, in finding the crime to be a Subcategory 1 murder, it breached the plea agreement.

The Board itself took no part in the plea negotiations and was not a party to the plea agreement between the district attorney and petitioner. Therefore, it could be bound by the agreement only if the district attorney had the authority to bind the Board, requiring it to treat his crime as a Subcategory 2 murder.

A district attorney's authority to conduct plea negotiations is governed by ORS 135.405 to 135.415. ORS 135.405(3) provides:

"The district attorney in reaching a plea agreement may agree to, but is not limited to, one or more of the following, as required by the circumstances of the individual case:

"(a) To make or not to oppose favorable recommendations as to the sentence which should be imposed if the defendant enters a plea of guilty or no contest to the offense charged;

"(b) To seek or not to oppose dismissal of the offense charged if the defendant enters a plea of guilty or no contest to another offense reasonably related to the defendant's conduct; or

"(c) To seek or not to oppose dismissal of other charges or to refrain from bringing potential charges if the defendant enters a plea of guilty or no contest to the offense charged."

Petitioner argues that, under ORS 135.405(3), a district attorney has broad authority to make concessions in plea negotiations. Admittedly, the list of permissible concessions is not exclusive. However, the items on that list all are matters within the normal scope of a district attorney's duties. A district attorney has broad discretion to make charging decisions. As an advocate for the state, the district attorney has the authority to make, or to forego making, recommendations to the sentencing court. Parole decisions, however, are statutorily delegated to the Board of Parole. ORS 144.005 to 144.395. It is unlikely that, in creating the list of permissible promises in ORS 135.405(3), the legislature intended to authorize a district attorney to usurp the function of the Board of Parole. Neither the statutory language nor any legislative history of which we have been made aware supports such a construction of the authority of the district attorney. Accepting petitioner's reading of the plea agreement to the effect that the district attorney promised petitioner that the Board would treat his offense as a Subcategory 2 murder, the Board was not bound by that unauthorized promise.

Petitioner also argues that, as part of the plea agreement, the district attorney promised that his office would not submit any information to the Board, except a statement recommending that petitioner be paroled after 10 years, unless petitioner requested that additional information be submitted. According to petitioner, the district attorney breached that agreement by submitting a copy of petitioner's detailed account of the crime to the Board. Again, for the purposes of this opinion, we will assume that the facts are as petitioner represent...