Severy v. Bd. of Parole & Post-Prison Supervision
| Decision Date | 14 October 2015 |
| Docket Number | A152340. |
| Citation | 360 P.3d 682,274 Or.App. 330 |
| Parties | Donald M. SEVERY, Petitioner, v. BOARD OF PAROLE and Post–Prison Supervision, Respondent. |
| Court | Oregon Court of Appeals |
274 Or.App. 330
360 P.3d 682
Donald M. SEVERY, Petitioner,
v.
BOARD OF PAROLE and Post–Prison Supervision, Respondent.
A152340.
Court of Appeals of Oregon.
Argued and Submitted July 21, 2014.
Decided Oct. 14, 2015.
Jason E. Thompsonargued the cause for petitioner. With him on the brief was Ferder Casebeer French & Thompson, LLP.
Matthew J. Lysne, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
OpinionNAKAMOTO, J.
Petitioner seeks review of an order of the Board of Parole and Post–Prison Supervision setting his projected parole release date for February 2022 after remand by the Oregon Supreme Court in Severy/Wilson v. Board of Parole,349 Or. 461, 478, 245 P.3d 119 (2010). Of the eight assignments of error that petitioner raises on review, we reject the third, seventh, and eighth without discussion. On administrative review before the board, petitioner failed to raise the issues he seeks to have us address in his first and fifth assignments of error; accordingly, we conclude that those issues are not cognizable on judicial review. Thus, we address the merits of petitioner's second, fourth, and sixth assignments, in which petitioner challenges the process that the board employed on remand and two 36–month upward variations on his prison term.
In his second assignment of error, petitioner asserts that the board lacked the authority to conduct a prison term hearing in 2011; as we explain below, that position rests on a false premise. In his fourth assignment of error, petitioner argues that the board lacked authority to use a victim's age as an aggravating factor to support an upward variation on petitioner's prison term because that factor applies only when the offender takes advantage of the victim's vulnerability. We agree with the board that no such requirement exists under the applicable matrix rules concerning aggravating factors and that the board adequately explained its application of the factor. Finally, we reject petitioner's sixth assignment of error, in which he argues that the board lacked a sufficient number of board members to impose two upward variations on petitioner's matrix range. Accordingly, we affirm the board's order.
I. FACTS
The background facts are procedural and undisputed. In 1984, petitioner murdered his father and brother while they were asleep and then set fire to their house to conceal his crimes. In 1985, a trial court convicted petitioner of two counts of aggravated murder and one count of arson. The court imposed two consecutive life sentences, each with a 30–year minimum term of imprisonment,
for the aggravated murder convictions and a consecutive 10–year mandatory minimum sentence for the arson conviction.
In October 1985, the board conducted a prison term hearing. A prison term hearing, also known as an “initial parole hearing,” is held either to establish a prison term by setting a parole consideration hearing date or a projected parole release date, or else to defer setting a parole release date.
ORS 144.120 (1981), amended byOr. Laws 1985, ch. 283, § 2. Applying the substantive law in effect at the time that petitioner committed the offenses, the board issued an order sustaining petitioner's minimum sentences and setting a matrix range1for petitioner's crimes of 270 to 376 months' imprisonment based on a crime severity of category 7, subcategory 1. The board added a category 8 crime severity rating in 1988, and the matrix ranges for that category were the same as the ranges for category 7, subcategory 1, in earlier matrices. CompareOAR ch. 255, Ex. C (July 1, 1988), withOAR ch. 255, Ex. C (May 31, 1985). At the same time, the board set a projected parole release date in October 2054 for petitioner's consecutive 360–month mandatory minimum sentences for aggravated murder and his consecutive 120–month mandatory minimum sentence for arson.
In 1988, petitioner filed for administrative review of the board's order. The board granted petitioner's request for review. “Sometime after 1988, the [b]oard received advice from the Attorney General that the [b]oard did not have the authority to set a parole release date for a prisoner sentenced for aggravated murder until the [b]oard determined, pursuant to ORS 163.105[ (3) (1981), amended byOregon Laws 1985, chapter 3, section 1], that the prisoner was capable of rehabilitation.” Severy v. Board of Parole,318 Or. 172, 175, 864 P.2d 368 (1993). The board could not make such a
determination for a prisoner convicted of aggravated murder under ORS 163.095(1) (1981), amended byOregon Laws 1991, chapter 337, section 12, until the board conducted a rehabilitation hearing. Id.Accordingly, in 1990, the board held an administrative review hearing and, as a result, recalculated petitioner's matrix range to 222 to 280 months, rescinded his October 2054 parole release date, and set a date for a parole review hearing—a date for a future hearing at which the board could set a release date. Severy v. Board of Parole,118 Or.App. 585, 587, 848 P.2d 1214, aff'd,318 Or. 172, 864 P.2d 368 (1993).2Petitioner did not seek judicial review of that order. Severy/Wilson,349 Or. at 465, 245 P.3d 119.
In 2004, the board held the required murder review hearing, pursuant to ORS 163.105(3) (1981), to determine whether petitioner was likely to be rehabilitated within a reasonable time. The board concluded that he was, and it changed the term of his confinement on his first sentence for aggravated murder to life in prison with the possibility of parole or work release. Severy/Wilson,349 Or. at 466, 245 P.3d 119. The board informed petitioner that he could petition the board again in twenty years for a change in the terms of his second aggravated murder sentence. Id.The board did not set a projected parole release date. See id.Petitioner challenged the board's 2004 decision.
On review, the Supreme Court held that the second 30–year minimum aggravated murder sentence was overridden by the board's finding that petitioner was likely to be rehabilitated within a reasonable time. Id.at 477–78, 245 P.3d 119. In other words, at the 2004 murder review hearing, the board should have changed the term of his confinement to life in prison with the possibility of parole or work release on both, not just one, of petitioner's sentences for aggravated murder. The court noted, however, that the conversion of prisoner's confinement to life imprisonment with the possibility of parole “did not necessarily alter the consecutive nature of * * * [petitioner's] sentences that remain in force.” Id.at 477, 245 P.3d 119.
Accordingly, the court remanded the case to the board for “further proceedings,”
id.at 478, 245 P.3d 119, directing the board to “use the applicable matrix rules in effect at the time of the commission of the underlying offenses to determine when * * * [petitioner] should be released.” Id.at 464, 245 P.3d 119(citing Janowski/Fleming v. Board of Parole,349 Or. 432, 453, 245 P.3d 1270 (2010)(issued on the same day as Severy/Wilsonand involving similar issues)).
Thus, on remand from the Supreme Court, the board was charged with determining petitioner's prison term. The board elected to carry out the holdings in Severy/Wilsonand Janowski/Flemingby providing petitioner with a hearing. The board referred to that hearing to determine when petitioner should be released as a “prison term hearing.”
The board scheduled petitioner's prison term hearing in July 2011. More than 14 days before the hearing, petitioner was provided with materials that the board would consider during the hearing. The documents included, inter alia,an “official version” of the crimes of conviction, as well as a list of aggravating and mitigating factors with respect to those crimes. Among the aggravating factors listed were factors “C” (“[k]new or had reason to know the victims were particularly vulnerable”) and “Q” (“[f]ailure to demonstrate remorse or empathy”). OAR ch. 255, Ex. E (May 19, 1982) (stating that the factors are aggravating circumstances justifying a variation from the range of duration of imprisonment).
At the hearing, the board again informed petitioner that it was considering factor C because he had reason to know at the time of the murders that his father, who was 74 years old, was particularly vulnerable. The board also informed petitioner that it was considering factor Q because of petitioner's extreme lack of emotion displayed throughout his presentence investigation and trial, as well as his failure to show any remorse. The board then allowed petitioner an opportunity to state his position on the aggravating factors. Petitioner did not raise any concerns to the board regarding their application to his prison term. In fact, when asked if he had any comments about the proposed use of aggravating factors, petitioner responded, “I don't think so.”
The board issued its decision in a 2011 board action form....
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