Submitted June 27, 2012.
[Copyrighted Material Omitted]
Peter Gartlan, Chief Defender, David O. Ferry, Deputy Public Defender, Office of Public Defense Services, filed the brief for petitioner.
John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Jeff J. Payne, Assistant Attorney General, filed the brief for respondent.
Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and NAKAMOTO, Judge.
[257 Or.App. 274] Petitioner is serving a life sentence for one count of aggravated murder, ORS 163.105. The trial court imposed a 30-year minimum sentence without the possibility of parole or work release and a 20-year minimum period before petitioner could seek parole review. He now seeks review of a decision by the Board of Parole and Post-Prison Supervision (the board) denying his request to change the terms of his confinement to a 30-year term. The board concluded that petitioner failed to carry his burden of proving that he was likely to be rehabilitated within a reasonable period of time. Petitioner contends that he provided sufficient evidence that he was capable of rehabilitation in a short period of time and, therefore, the board's decision was not supported by substantial evidence. In addition, petitioner contends that the board failed to provide substantial reasoning for its conclusions. In our review under ORS 183.482(8)(c), we conclude that the board's final order is supported by substantial evidence and substantial reason. Accordingly, we affirm.
In 1987, petitioner was drinking at a tavern. Petitioner recounted that, after several patrons left the bar, he engaged in an argument with the victim, the bartender, about
whether petitioner also had to leave. Petitioner then followed the victim behind the bar, the victim kicked petitioner in the leg, and, in response, petitioner stabbed the victim with a pair of scissors. After stabbing the victim, petitioner then took money from the register and left the tavern. The victim later died from a stab wound to the heart. According to petitioner, he turned himself in to the police but initially denied committing the murder, blaming the stabbing on an unnamed accomplice. Petitioner later entered a guilty plea and was convicted of one count of aggravated murder. At the time of the murder, petitioner was 33 years old and was on parole in California for robbery.
In 2009, the board held a murder review hearing as to petitioner's sentence. The sole issue at the hearing, pursuant to ORS 163.105(2), was whether petitioner was likely to be rehabilitated within a reasonable time. The [257 Or.App. 275] board considered material related to his crimes, court documents, and records from the Oregon Department of Corrections. At the time of his conviction, petitioner had a juvenile and an adult criminal record in California over a period of 18 years for several theft, robbery, assault, and burglary offenses, some of which he had committed during periods of probation or parole. While incarcerated, petitioner received at least eight disciplinary reports for the following misconduct: " Assault IV," " Disobedience I," " Contraband III," " Assault III," " Disobedience II," " Disrespect I," and " Forgery."
According to petitioner, he received certificates in a number of treatment, educational, and vocational programs: Cognitive Self-Change I and II, Breaking Barriers, Journeyman Upholstery, Alcoholics Anonymous, Freedom Road, and Lifers Speaking Panel. Petitioner admitted to having a drug and alcohol problem in the past, but he no longer participated in Alcoholics Anonymous. Petitioner also has been employed in various positions throughout his 20 years of confinement, but he rarely made any deposits of his earnings in his inmate account.
At the hearing, Carol Dixon, petitioner's wife, testified as to her relationship with petitioner. She explained that she had met petitioner while he was incarcerated and married him in 2003. When asked about their relationship, she explained that they have a lot in common, including their faith in God. She requested that the board release petitioner on parole, partly, because she is physically disabled and, consequently, needs his assistance " to get around." When asked by the board whether petitioner has the ability to be rehabilitated, she explained that petitioner does have the ability to be rehabilitated because of the support he receives from his family and his faith. She stated that, if petitioner were released, she would financially support him and is able to do so because she currently works two jobs.
[257 Or.App. 276] Petitioner also testified at the hearing. The board asked petitioner to explain the sequence of events that led to his conviction. In response, petitioner explained that, on the night of the murder, he was drinking at a tavern when the bartender, the victim, told him to leave, which led to an argument between the two of them. Petitioner stated that as the victim walked away, in his " paranoid state," he followed the victim behind the bar and stabbed him with a pair of scissors. Despite a statement in the Parole Analyst Report (PAR) that the victim's ring was stolen, petitioner denied stealing the victim's ring before leaving the bar. He admitted that he had fabricated the allegation that an unnamed accomplice committed the murder, but he explained that his attorney advised him to do so. When asked by the board to explain why petitioner followed the victim instead of leaving the bar, he responded by stating, " Because I didn't like myself." And when asked why petitioner could not have used some lesser degree of force to defend himself, he responded that he was a different person back then and that he could not explain
what he felt at the time because he was under the influence of alcohol and rage and was not thinking.
Petitioner then described to the board his plan upon release. Petitioner stated that he intends to reside with his wife at her home in Idaho and would like to counsel or mentor at-risk youth. He also explained that he has secured employment at a barbershop owned by Niehoff, his wife's good friend. The board asked several questions related to the financial dynamic between petitioner and his wife, namely, why his wife had deposited approximately $1,700 in his inmate account in 2007. In response, petitioner explained that he had not asked for the money from his wife, and she had gifted the money to him. And, in response to the board's concern that his wife worked two jobs even though she had some physical disability, petitioner stated that " she work[s] two jobs because she want[s] to. Now, if she don't want to she don't have to."
The board also heard testimony in support of petitioner's release from petitioner's sisters; Hughes, Carol Dixon's daughter from another marriage; Niehoff; and Pastor Ross, Carol Dixon's pastor. In addition, the board received written statements of support for petitioner from [257 Or.App. 277] individuals, some of whom also testified at the hearing, including one from a member of the Ohio Justice Commission and one from a friend of petitioner. In general, those individuals described petitioner as a changed person due to his committed Christian faith and his wife's support.
In its final order, the board concluded that petitioner failed to meet his burden of proving, by a preponderance of the evidence, that he is likely to be rehabilitated within a reasonable time. Relying on OAR 255-032-0020, which outlines criteria for the board to use in determining whether petitioner is likely to be rehabilitated, the board's ultimate conclusion was based on findings related to his employment history; his maturity, stability, and demonstrated responsibility; his prior criminal history; his conduct during periods of probation or parole; his mental or emotional disturbance, deficiency, condition, or disorder; his parole plan; and the likelihood that he would conform to the conditions of parole.
The board found that petitioner lacked maturity, stability, and demonstrated responsibility that would promote his conformity to a law-abiding life based on four facts. First, the board found that petitioner's testimony was inconsistent with statements in the PAR. Despite a statement in the PAR to the contrary, petitioner denied stealing the victim's ring and claimed that he only stole money from the cash register. Second, the board found that petitioner's testimony at the hearing demonstrated " minimal ability or willingness to reflect on his crime" and minimization of his crime. Third, the board was troubled by petitioner's 18-year history of robberies, armed robberies, assault with a deadly weapon, and other crimes, some of which occurred during periods of parole and probation. For the board, that history demonstrated " extremely poor performance while on probation and parole" and indicated that, even at the age of 33 when he murdered the victim, and despite numerous incarcerations, petitioner was incapable of foreseeing the serious consequences of his conduct. Lastly, the board found [257 Or.App. 278] that the financial dynamic between petitioner and his wife showed that he lacked " motivation, maturity, or a sense of ...