Wilson v. Bd. of Parole & Post-Prison Supervision, A174549

CourtCourt of Appeals of Oregon
Writing for the CourtTOOKEY, P. J.
Citation322 Or.App. 773
Docket NumberA174549
Decision Date23 November 2022

322 Or.App. 773




Court of Appeals of Oregon

November 23, 2022

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

Submitted August 5, 2022

Board of Parole and Post-Prison Supervision

Mark James Wilson fled the brief pro se.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jeff J. Payne, Assistant Attorney General, fled the brief for respondent.

Before Tookey, Presiding Judge, and Lagesen, Chief Judge, and Egan, Judge.


[322 Or.App. 774]


Petitioner seeks judicial review of a final order of the Board of Parole and Post-Prison Supervision that set petitioner's prison term at 474 months, raising three assignments of error. We affirm.

Under ORS 183.482(8Xa), we review the board's order "to determine whether the board erroneously interpreted a provision of law" and whether "a correct interpretation compels a particular action." Baker v. Board of Parole, 305 Or.App. 814, 815, 473 P.3d 83, rev den, 367 Or. 290 (2020) (brackets and internal quotation marks omitted). "When determining whether the board correctly interpreted its own rule, we defer to the board's interpretation, so long as its interpretation is not inconsistent with the wording of the rule itself, or with the rule's context, or with any other source of law." Id. (brackets and internal quotation marks omitted). Further, we review the agency's exercise of discretion only to determine whether it was "[o]utside the range of discretion delegated to the agency by law," ORS 183.482(8)(b)(A),"[i]nconsistent with an agency rule, an officially stated agency position, or a prior agency practice," ORS 183.482(8)(b)(B), or "[otherwise in violation of a constitutional or statutory provision," ORS 183.482(8)(b)(C). Finally, under ORS 183.482(8)(c), we will set aside the final order if it is unsupported by substantial evidence in the record.

Petitioner was convicted of aggravated murder, ORS 163.095 (1987), based on conduct that he undertook in 1987, and he was sentenced to life imprisonment with a 30-year minimum, pursuant to ORS 163.105 (1987). In 2019, the board found that petitioner was likely to be rehabilitated within a reasonable period of time and, accordingly, changed the terms of his confinement to life imprisonment with the possibility of release to parole pursuant to ORS 163.105 (1987). The board was then obligated to set a release date for petitioner in accordance with the "parole matrix" in place in 1987, when petitioner committed his offense. Janowski/Fleming v. Board of Parole, 349 Or. 432, 453, 245 P.3d 1270 (2010) ("[W]e conclude that the legislature intended the board, having converted the terms of a


[322 Or.App. 775] prisoner's confinement to life in prison with the possibility of parole, to set a release date in accordance with the parole matrix in place when the prisoner committed his offense.").

To set a release date using the parole matrix in place at the time petitioner committed his offense, the board was required to designate both an "offense severity rating" (based on the offense petitioner committed) and a "risk assessment score." See, e.g., OAR ch 255, Ex C (1985).

In 1987, at the time petitioner committed his offense, the board's rules designated both aggravated murder, ORS 163.095, and regular murder, ORS 163.115, as offenses with an offense severity rating of "7." OAR ch 255, Ex A (1985). For offenses with a severity rating of 7-such as petitioner's...

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