State Ex Rel. Conrad R. Engweiler v. Felton

• Decision Date: 01 September 2011
• Docket Number: (CC 07C18859; CA A139059; SC S058311; CC 06C14844; CA A134157; SC S058373; CA A128108; SC S058327).
• Citation: 260 P.3d 448,350 Or. 592
• Parties: STATE ex rel. Conrad R. ENGWEILER, Petitioner on Review,v.Aaron FELTON, Chairperson of the Board of Parole and Post–Prison Supervision, Respondent on Review.State ex rel. Shane I. Sopher, Petitioner on Review,v.Michael Washington, Chairperson of the Oregon Board of Parole and Post–Prison Supervision, Respondent on Review.Shane I. Sopher, Petitioner on Review,v.Board of Parole and Post–Prison Supervision, Respondent on Review.
• Court: Oregon Supreme Court

350 Or. 592

260 P.3d 448

STATE ex rel. Conrad R. ENGWEILER, Petitioner on Review,

v.Aaron FELTON, Chairperson of the Board of Parole and Post–Prison Supervision, Respondent on Review.State ex rel. Shane I. Sopher, Petitioner on Review,

v.Michael Washington, Chairperson of the Oregon Board of Parole and Post–Prison Supervision, Respondent on Review.Shane I. Sopher, Petitioner on Review,

v.Board of Parole and Post–Prison Supervision, Respondent on Review.

(CC 07C18859; CA A139059; SC S058311; CC 06C14844; CA A134157; SC S058373; CA A128108; SC S058327).

Supreme Court of Oregon.

Argued and Submitted Dec. 1, 2010.Decided Sept. 1, 2011.

On review from the Court of Appeals.^*Andy Simrin, Portland, argued the cause and filed the brief for petitioner on review Conrad R. Engweiler. Kristina Hellman, Federal Public Defender—District of Oregon, Portland, argued the cause and filed the briefs for petitioner on review Shane I. Sopher.Jeremy C. Rice, Assistant Attorney General, Salem, argued the cause for respondents on review Aaron Felton, Chairperson of the Board of Parole and Post–Prison Supervision; Michael Washington, Chairperson of the Oregon Board of Parole and Post–Prison Supervision; and Oregon Board of Parole and Post–Prison Supervision. With him on the briefs were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.Before, DE MUNIZ, Chief Justice, and DURHAM, BALMER, KISTLER, WALTERS, and LINDER, Justices.^**DE MUNIZ, C.J.

These three cases, which we have consolidated for purposes of argument and opinion, involve one administrative rule challenge (ORS 183.400) and two mandamus actions (ORS 34.110) brought by two prison inmates, each convicted of aggravated murder that he committed when he was less than 17 years of age.¹

In the rule challenge brought by petitioner Sopher, he contends that the board exceeded its statutory authority when it promulgated administrative rules (the juvenile aggravated murder, or JAM, rules) that provide for a parole review hearing (rather than a parole hearing for the purpose of setting an initial parole release date) after no fewer than 20 years of incarceration, at which time a person convicted of juvenile aggravated murder may attempt to establish his or her suitability for eventual parole. In Sopher's rule challenge case, the Court of Appeals concluded that the board did not exceed its statutory authority in promulgating those rules, because ORS 144.110(2)(b) and ORS 163.105(2) to (4) ² require the intermediate process established in the JAM rules. Sopher v. Board of Parole, 233 Or.App. 178, 225 P.3d 836 (2010) ( Sopher II ).

In the two mandamus cases, relators Engweiler and Sopher each contend that the board was required under ORS 144.120(1) (1989) and ORS 144.120(1) (1991), respectively, to conduct a parole hearing and set an initial parole release date for each of them. In each case, the Court of Appeals held, among other things, that ORS 144.110(2)(b) and ORS 163.105(2) to (4) obviate any requirement in ORS 144.120(1) (1989) or ORS 144.120(1) (1991) that the board conduct such a hearing or set an initial release date for juvenile aggravated murderers. State ex rel. Engweiler v. Powers, 232 Or.App. 214, 221 P.3d 818 (2009) ( Engweiler VI ); ³ State ex rel. Sopher v. Washington, 233 Or.App. 228, 225 P.3d 142 (2010) ( Sopher III ).

The common denominator in the three cases is the applicability to juvenile aggravated murderers of ORS 144.110(2)(b) and ORS 163.105(2) to (4). For the reasons set forth below, we conclude that ORS 144.110(2)(b) and ORS 163.105(2) to (4) do not apply to juvenile aggravated murderers. For that reason and others explained below, we also conclude that the board exceeded its statutory authority when it promulgated rules requiring juvenile aggravated murderers to undergo the intermediate review process described in ORS 163.105(2) to (4) before the board makes parole release decisions regarding them. Finally, we conclude that the legislature provided the board with authority in ORS 144.120(1) (1989) and ORS 144.120(1) (1991) to determine initial release on parole for inmates like these who are serving an indeterminate sentence of life imprisonment with the possibility of parole. We also conclude that ORS 144.120(1) (1989) imposed on the board a legal duty to conduct a parole hearing for Engweiler to set an initial release date for him or explain why it chooses not to do so. As to Sopher, we hold that ORS 144.120(1) (1999) entitles him to a hearing at some point to set an initial parole release date, but that the board has no present legal duty to conduct such a hearing and, therefore, Sopher does not have a remedy in mandamus. We therefore reverse the Court of Appeals decision in Engweiler VI, reverse the Court of Appeals decision in Sopher II, and affirm in part and vacate in part the Court of Appeals decision in Sopher III.⁴

I. BACKGROUND

We briefly summarize the factual and procedural background of each of the petitioners' cases. Engweiler committed aggravated murder in 1990, when he was 15 years old. He was tried as an adult, and, on his conviction, the trial court imposed a life sentence with a 30–year mandatory minimum term of imprisonment under ORS 163.105(1)(c) (1989). Engweiler appealed, arguing, among other things, that the sentence that the trial court imposed was unlawful, because ORS 161.620 (1989) prohibited trial courts from imposing a mandatory minimum sentence on any person who was remanded from the juvenile court and was under 17 years of age at the time that he committed the crime for which he was remanded. The Court of Appeals agreed with that argument and vacated the sentence. State v. Engweiler, 118 Or.App. 132, 136, 846 P.2d 1163, rev. den., 317 Or. 486, 858 P.2d 876 (1993) ( Engweiler I ). In 1994, Engweiler was resentenced to life in prison.

Sopher committed aggravated murder in 1992, when he was 16 years old. He, too, was remanded from the juvenile court and tried as an adult. Upon his aggravated murder conviction, the trial court imposed a sentence of life in prison.

In State ex rel. Engweiler v. Cook, 340 Or. 373, 380–81, 133 P.3d 904 (2006) ( Engweiler IV ), this court explained that, at the time Engweiler committed his crime, a sentence of life in prison was:

“an indeterminate sentence [which] state[s] only a maximum term to be served under the jurisdiction of the Department of Corrections. Such a sentence did not establish the length of time that a defendant was to be incarcerated.”

And, with regard to an indeterminate sentence, the legislature had granted authority to the Executive Branch to establish an inmate's actual duration of imprisonment, using a parole matrix that the legislature directed the board to create. Id. at 381, 133 P.3d 904; Or. Laws 1977, ch. 372, § 2.

Oregon had an indeterminate sentencing scheme before 1989 and used a parole matrix system for establishing the actual term of imprisonment for most felony offenders. 340 Or. at 831, 136 P.3d 744. In 1989, the legislature replaced that scheme with a new “guidelines” sentencing scheme, under which the Judicial Branch (judges) are required to impose determinate sentences—defined presumptive punishments, based on sentencing guidelines that were created by the State Sentencing Guidelines Board and later approved by the state legislature—for most felony convictions. Under the guidelines scheme, judges have little discretion to deviate from the guidelines ranges and criminal defendants subject to guidelines sentencing are not eligible for release on parole. Id.; Engweiler v. Board of Parole, 343 Or. 536, 540–41, 175 P.3d 408 (2007) ( Engweiler V ).

However, juvenile aggravated murderers like Engweiler and Sopher continued to receive life sentences until 1995. Engweiler IV, 340 Or. at 381–82, 133 P.3d 904 (inmates who committed aggravated murder after November 1, 1989, but who were juveniles at the time of their crimes continued to receive indeterminate sentences and the board set their terms of incarceration); Engweiler V, 343 Or. at 545, 175 P.3d 408 (juvenile aggravated murderers are entitled to the possibility of parole).

Although juvenile aggravated murderers were entitled to the possibility of parole after 1989, the board had no rules governing parole decisions for them. See Engweiler V, 343 Or. at 548, 175 P.3d 408 (board rules “contained a void” with respect to juvenile aggravated murderers). In 1999, to address that situation, the board promulgated a set of administrative rules to be applied to determine whether and when to grant parole release to juvenile aggravated murderers. Those rules are known as the JAM rules. As this court explained in Engweiler V,

“[T]he JAM rules require the board to hold an initial ‘prison term hearing’ for juveniles convicted of murder who were under age 17 at the time of the offense. OAR 255–032–0005(4) (1999). At that hearing, the board sets ‘a review date * * * rather than a projected parole release date.’ Id. Alternatively, the board may ‘deny parole’ altogether. OAR 255–032–0011(2) (1999). If the board opts to set a review date, it does so based on a parole release matrix that it adopted specifically for juvenile aggravated murderers who are eligible for parole consideration. Id. (cross-referencing Exhibit P–III). Essentially, that matrix establishes ranges of time periods that dictate whether and when a juvenile aggravated murderer will be reviewed for parole eligibility and will receive a parole release date. At the low end, the matrix can result in a review date between 240 and 300 months. Id. At the high end, it can result in a ‘life’ term, which is a denial of parole. Id. The review date then triggers a schedule for further board review of the inmate's institutional conduct and rehabilitation efforts, after which the board may establish a parole release date under the matrix or may set another review date at which it will further review the inmate's conduct and...