Walton v. Bd. of Parole and Post-Prison Supervision
| Decision Date | 17 November 2010 |
| Docket Number | A142414. |
| Citation | 243 P.3d 811,238 Or.App. 664 |
| Parties | Jimmy L. WALTON, Petitioner, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent. |
| Court | Oregon Court of Appeals |
Jimmy L. Walton filed the briefs pro se.
John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Jeff J. Payne, Assistant Attorney General, filed the brief for respondent.
Before LANDAU, Presiding Judge, and ORTEGA, Judge, and SERCOMBE, Judge.
Petitioner, who was convicted of aggravated murder, seeks judicial review of a final order of the Board of Parole and Post-Prison Supervision (board) in which the board determined that petitioner was likely to be rehabilitated within a reasonable period of time and set a projected parole release date of October 2, 2016. Petitioner argues that the board erred in setting a "projected" release date as opposed to a firm release date. He argues that the statute authorizing the board to set a projected release date does not apply to individuals convicted of aggravated murder. We affirm.
The relevant facts are not disputed. In 1987, petitioner was convicted of aggravated murder and other related charges. On the aggravated murder charge, the trial court imposed a sentence of life imprisonment without the possibility of parole, with a minimum of 30 years, in accordance with the law in effect at the time, ORS 163.105(1) (1985).1
Twenty years later, also in accordance with the law in effect at the time of the offense, the board held a rehabilitation hearing. ORS 163.105(2). After the hearing, the board determined that petitioner was likely to be rehabilitated within a reasonable period of time and set a projected release date, following the mandatory minimum of 30 years' imprisonment, of October 2, 2016. Under ORS 144.125, the board scheduled a hearing for six months before the projected release date and ordered a psychological evaluation to be done at that time.
On review, petitioner argues that the board erred by setting a projected release date rather than a firm release date. He argues that his sentence is governed by ORS 163.105, which applies "[n]otwithstanding theprovisions of ORS chapter 144." According to petitioner, because the provisions of ORS 144.125 on which the board relied to set a projected release date do not apply, the board was obligated to set a firm release date.
The board responds that, under ORS 163.105, the provisions of ORS chapter 144 are excepted only insofar as they conflict with the provisions of that statute. In this case, the board argues, because nothing in ORS 163.105 says anything about setting a release date, no such conflict arises, and the board is free to rely on ORS 144.125 to determine the process for setting a release date.
The parties' arguments thus require us to examine the interplay between ORS 163.105 and ORS 144.125. ORS 163.105 provides, in part:
In a nutshell, the statute requires a person convicted of aggravated murder to be sentenced either to death or to life imprisonment, with a minimum of 30 years without the possibility of parole. It further provides for a review hearing any time after 20 years following the imposition of the sentence to determine whether the offender is likely to be rehabilitated. If the board so concludes, the statute authorizes it to change the sentence to life imprisonment with the possibility of parole. The statute clearly provides that it applies "[n]otwithstanding the provisions of ORS chapter 144," among other statutes.
ORS 144.125 establishes the criteria for determining if an eligible offender is prepared for release. It provides that, "[p]rior to the scheduled release of any prisoner on parole," the board may "interview the prisoner to review the prisoner's parole plan and psychiatric or psychological report, if any, and the record of the prisoner's conduct during confinement." ORS 144.125(1). Depending on the results of the interview and the board's evaluation of any reports and the offender's record, the board may postpone the release date. ORS 144.125(2)-(3).
The question posed by petitioner's arguments in this case is whether ORS 144.125 applies to him, given the provision that ORS 163.105 applies "[n]otwithstanding the provisions of ORS chapter 144." In general, a "notwithstanding" clause functions merely to except enumerated provisions that otherwise conflict. Engweiler v. Board of Parole, 343 Or. 536, 544, 175 P.3d 408 (2007). Directly on point in that regard is our decision in Larsen v. Board of Parole, 231 Or.App. 59, 62, 219 P.3d 28 (2009), rev. den., 348 Or. 13, 227 P.3d 1172 (2010), in which we held that "[t]he 'notwithstanding' clause [of ORS 163.105] simply means that, to the extent that ORS 163.105 and ORS chapter 144 containconflicting provisions, the former controls."
In this case, there appears to be no such conflict. ORS 163.105 merely authorizes the board to convert a sentence for aggravated murder from life imprisonment with a 30-year minimum without the possibility of parole to a sentence of life imprisonment with the possibility of parole; it says nothing about how the actual parole release date is set.That is certainly the way that we have read ORS 163.105 in prior cases.
In Corgain v. Board of Parole, 213 Or.App. 407, 162 P.3d 990 (2007), we addressed the relationship between earlier versions of the statutes, namely, ORS 163.105 (1981) and ORS 144.125 (1981). In that case, the petitioner had been convicted of robbery and aggravated murder in 1981. Id. at 409, 162 P.3d 990. He was sentenced to life imprisonment with a 20-year minimum for the aggravated murder conviction under ORS 163.105 (1981), as well as a 20-year indeterminate sentence on the robbery conviction, to be served consecutively to the sentence for aggravated murder. Id. Twenty years later, the board determined that the petitioner was likely to be rehabilitated and set a projected release date. Id. Before the projected release date, the board reviewed a psychological report and, based on that report, deferred the petitioner's release date. Id. at 410, 162 P.3d 990. He sought judicial review, arguing that, among other things, the board lacked authority to set anything but a firm release date, which would immediately trigger the commencement of his sentence on the robbery conviction. Specifically, he argued that, once the board found that he was capable of rehabilitation, it was obligated to set a firm release date, and the provisions of ORS 144.125 (1981) simply did not apply. Id. at 411, 162 P.3d 990.
We determined that ORS 163.105 (1981) described when an offender may be subject to the "possibility" of parole, but provided no actual process for determining when release should commence. Id. at 418, 421, 162 P.3d 990. We then determined that ORS 144.125 (1981) did describe a process for determining a date of release and that that statute, by its terms, applied before "any prisoner is released on parole." Id. at 421-22, 162 P.3d 990. Accordingly, we concluded that the two statutes did not conflict and that ORS 144.125 (1981) controlled the determination of when a person convicted of aggravated murder could be released. Id.
To similar effect is our more recent decision in Fleming v. Board of Parole, 225 Or.App. 578, 202 P.3d 209, rev. allowed, 346 Or. 361, 211 P.3d 930 (2009). In that case, the petitioner had been convicted of aggravated murder in 1986 and sentencedunder ORS 163.105 to life imprisonment with a 30-year minimum without the possibility of parole. Id. at 580, 202 P.3d 209. Twenty-one years later, in 2007, the board held a rehabilitation hearing and determined that the petitioner was capable of rehabilitation. The board then set a projected release date of April 2016, following the completion of what the board saw as the 30-year minimum...
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Walton v. Bd. of Parole, A142414.
...242 Or.App. 678261 P.3d 641Jimmy L. WALTON, Petitioner,v.BOARD OF PAROLE AND POSTPRISON SUPERVISION, Respondent.No. A142414.Court of Appeals of Oregon.Submitted Remand April 6, 2011.Decided May 18, 2011 ... [261 P.3d 641] Jimmy L. Walton filed ... ...