State ex rel. Engweiler v. Powers

• Decision Date: 25 November 2009
• Docket Number: 07C18859.,A139059.
• Citation: 221 P.3d 818,232 Or. App. 214
• Parties: STATE ex rel. Conrad R. ENGWEILER, Relator-Respondent, v. Steven POWERS, Chairperson of the Board of Parole and Post-Prison Supervision, Defendant-Appellant.
• Court: Oregon Court of Appeals

221 P.3d 818

232 Or. App. 214

STATE ex rel. Conrad R. ENGWEILER, Relator-Respondent, v. Steven POWERS, Chairperson of the Board of Parole and Post-Prison Supervision, Defendant-Appellant.

07C18859.

A139059.

Court of Appeals of Oregon.

Submitted August 7, 2009.

Decided November 25, 2009.

John Kroger, Attorney General, Rolf C. Moan, Acting Solicitor General, and Jeremy Rice, Assistant Attorney General, filed the brief for appellant.

Conrad R. Engweiler filed the respondent's brief pro se.

Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and ORTEGA, Judge.

LANDAU, P.J.

This is a mandamus action. ORS 34.105 to 34.240. Relator was convicted of aggravated murder and other crimes and, ultimately, sentenced to life in prison. He petitioned the Marion County Circuit Court for a peremptory writ directing defendant, the chair of the Board of Parole and Post-Prison Supervision (board), to hold a hearing and set his initial parole release date. The circuit court issued the writ, and the board appeals. We reverse and remand with instructions to vacate the writ and dismiss the petition.

I. FACTS

The relevant facts are undisputed. In 1990, relator raped, sodomized, and murdered a 16-year-old female acquaintance. He was 15 years old at the time of the offense, but he was tried and convicted in adult court. See former ORS 419.533(1)(b) (1989), renumbered as ORS 419C.349(2)(a) (providing in part for waiver of juvenile court jurisdiction and remand to circuit court of juveniles aged 15 or over who committed aggravated murder).¹ He was sentenced to life in prison with a 30-year minimum.

Relator appealed, challenging the lawfulness of the sentence. This court concluded that ORS 161.620 (1989) prohibited the imposition of mandatory minimum sentences on offenders remanded from juvenile court. The court remanded relator's case to the trial court for resentencing. State v. Engweiler, 118 Or.App. 132, 846 P.2d 1163, rev. den., 317 Or. 486, 858 P.2d 876 (1993) (Engweiler I). In 1994, relator was resentenced to life imprisonment with the possibility of parole.

In 1999, the board adopted new rules relating to parole of juvenile aggravated murderers. Later that year, in accordance with those new rules, the board conducted a prison term hearing for relator, set his prison term at 480 months, and set a date in 2029 for a "murder review hearing." See OAR 255-032-0005(4) (May 18, 1999) (juveniles who were under 17 years of age when they committed their crime, who were tried in adult court under ORS 419C.349, and who were convicted of aggravated murder committed on or after November 1, 1989, and before April 1, 1995, shall receive a "prison term hearing" at which the board shall set an aggravated murder "review date * * * rather than a projected parole release date"); OAR 255-032-0011 (May 18, 1999) (setting out requirements for that type of hearing, including criteria for establishing the date of the offender's aggravated murder review hearing or, alternatively, for denying parole).

Relator sought judicial review of the board's 1999 decision, but the Oregon Supreme Court dismissed review on the ground that, under ORS 144.335 (1999), the board's decision was not subject to judicial review. Engweiler v. Board of Parole, 340 Or. 361, 133 P.3d 910 (2006) (Engweiler II).² The Supreme Court explained that, "to the extent that [relator] had (or continues to have) a right to enforce the board's obligation * * * to conduct a parole hearing and to set an initial [parole] release date," the "proper avenue for vindicating that right is to seek a writ of mandamus[.]" Id. at 369-70, 133 P.3d 910.

Relator did precisely that, initiating this mandamus action in the circuit court. Relator argued that the board was required to hold a hearing and set an initial parole release date within one year following his admission to the Department of Corrections (DOC). In support of his petition, relator relied on ORS 144.120(1)(a) (1989), which provided, in part, that, "[f]or those prisoners sentenced to a term of imprisonment for life or for 15 years or more, the board shall conduct the parole hearing, and shall set the initial release date, within one year following admission of the prisoner to the [Department of Corrections] institution."

The board responded that offenders sentenced to life imprisonment for aggravated murder are not entitled to a hearing or the establishment of an initial parole release date under that statute. That is so, the board argued, because ORS 144.120(1)(a) was amended in 1991 to exclude offenders who were sentenced for murder or aggravated murder. Because relator was resentenced in 1994, the board argued, the amended version of the statute applied. Relator argued in turn that to apply the amended version of the statute to him would violate constitutional ex post facto prohibitions. The board rejoined that, because the amendments were procedural in nature, there is no constitutional impediment to applying them to relator. The trial court concluded that ORS 144.120(1)(a) (1989) applied to relator and issued a writ directing the board to hold a hearing and set an initial parole release date as provided therein.

II. ANALYSIS

The board now appeals, arguing, as it did below, that ORS 144.120(1)(a) is a procedural statute that does not implicate ex post facto concerns, that it was amended in 1991 to exclude offenders sentenced for murder or aggravated murder, and that, accordingly, after relator was resentenced in 1994, he did not come within the ambit of that statute. See Engweiler II, 340 Or. at 369, 133 P.3d 910 (noting that ORS 144.120 is a procedural statute and that neither party in the case had explained "why it necessarily is the case" that the 1989 version of the statute would continue to apply to offenders after the legislature amended it; declining to decide that issue).

The board also argues that, even assuming that ORS 144.120(1)(a) is substantive rather than procedural in nature, the 1989 version does not apply to relator because that statute is expressly qualified by a contemporaneous, related statute, ORS 144.110(2)(b) (1989), which provided that ORS 144.120 (1989) does not apply to offenders convicted of aggravated murder. The board concedes that it did not make that argument below but argues that, for purposes of construing a statute, this court is permitted—if not required—to consider relevant contextual statutes.

Relator responds that nothing in the text or history of the 1991 amendments to ORS 144.120(1)(a) (1989) suggests that the legislature intended them to have retroactive effect. Even if that were not the case, he contends, applying those amendments to him would violate state and federal constitutional guarantees against ex post facto laws. As for the board's argument that ORS 144.120(1)(a) (1989) does not apply to him in the first place, relator argues that the argument is unpreserved.

For the reasons that follow, we conclude that preservation principles do not foreclose the board from relying on what is essentially context for the proper interpretation of ORS 144.120(1)(a) (1989). We further conclude that, on the merits, the board is correct that ORS 144.120(1)(a) (1989) does not apply to relator and does not authorize the trial court's issuance of a writ directing the board to hold a hearing and set an initial parole release date for him. Because we hold that the statute does not apply, it is not necessary to address the parties' arguments about whether the legislature intended the 1991 amendments to apply retroactively or whether their retroactive application to relator would run afoul of constitutional ex post facto prohibitions.

A. Preservation of error

We begin with the parties' contentions about whether the board may rely on other statutes in arguing about the scope and application of ORS 144.120(1)(a) (1989). As we have noted, that statute provides, in part, that, "[f]or those prisoners sentenced to a term of imprisonment for life or for 15 years or more, the board shall conduct the parole hearing, and shall set the initial release date, within one year following admission of the prisoner to the [Department of Corrections] institution." At issue in this case is whether that statute applies to relator.

Before the trial court, the board argued that the statute does not apply to persons who have been convicted of, and sentenced for, aggravated murder. As we have noted, the board's reasoning in support of that argument was that ORS 144.120(1)(a) was amended in 1991 to say precisely that. On appeal, the board again argues that ORS 144.120(1)(a) (1989) does not apply to one convicted of, and sentenced for, aggravated murder. And it again argues that one reason for that contention is that the legislature amended the statute to say that in 1991. The preservation question arises out of the fact that the board now also contends that ORS 144.120(1)(a) (1989) does not apply to one convicted of, and sentenced for aggravated murder for a separate and independent reason, namely, the existence of a related statute, ORS 144.110(2)(b) (1989), which provided that "[n]otwithstanding the provisions of ORS 144.120, * * * [t]he board shall not release a prisoner on parole who has been convicted of murder defined as aggravated murder" except as provided in a separate statute prescribing sentences for those convicted of that offense.

Whether the board is correct that ORS 144.110(2)(b) (1989) supplied an applicable exception to ORS 144.120 (1989) is not the issue, at least at this juncture. The question is whether the failure of the board to mention the former statute to the trial court precludes reliance on it on appeal. We answer that question in the negative.

Once the meaning and application of a statute have been put before us, we have an obligation to correctly construe and apply that statute. See Stull v. Hoke, 326 Or. 72, 77, 948 P.2d 722 (1997) (in construing a statute, reviewing court is responsible...