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Dam v. Board of Parole & Post-Prison Supervision

Court of Appeals of Oregon

August 14, 2013

NGHIA GIA DAM, Petitioner,

Argued and Submitted June 27, 2012.

Stephanie J. Hortsch, Deputy Public Defender, argued the cause for petitioner. With her on the brief was Peter Gartlan,

Page 162

Chief Defender, Office of Public Defense Services.

Erin C. Lagesen, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and NAKAMOTO, Judge.


[258 Or.App. 40] Petitioner, who is serving dangerous offender sentences on 15 counts of first-degree robbery, seeks judicial review of an order of the Board of Parole and Post-Prison Supervision (the board), ORS 144.335(1), (3), contending that the board erred in concluding, after a parole consideration hearing, that petitioner has a mental or emotional disturbance predisposing him to the commission of a crime and remains dangerous, and setting a new parole consideration date. ORS 144.228. Petitioner contends that the board erred in relying on a psychological evaluation that was based on erroneous information. We agree with petitioner and therefore reverse and remand the board's order.

In 1988, petitioner was convicted of 15 counts of armed robbery arising out of two incidents involving multiple victims. He was sentenced to 30 years' incarceration on each count, with 12 of the sentences (arising out of the first incident) running concurrently, and three sentences (arising from the second incident) running concurrently to each other but consecutive to the sentences on the 12 counts arising from the first incident. In sentencing, the court found that petitioner was a dangerous offender under ORS 161.725 and ORS 161.735.

In anticipation of a parole consideration hearing of September 3, 2008, the board ordered a psychological evaluation of petitioner pursuant to ORS 144.226 and ORS 144.228. The evaluation was conducted on June 20, 2008, by Dr. Stuckey, who interviewed petitioner and reviewed the written record, including presentence investigation (PSI) materials and the report of petitioner's performance within the institution. Based on that evaluation, Stuckey concluded that petitioner " has a present severe emotional disturbance such as to constitute a danger to the health and safety of the community."

The board conducted a hearing and, after deliberations, determined that petitioner remained dangerous and deferred petitioner's parole consideration date for two years. Petitioner timely sought administrative review, asserting [258 Or.App. 41] among other arguments that Stuckey's psychological evaluation had been based on an incorrect criminal history report and therefore did not provide substantial evidence in support of the board's findings.

In fact, the PSI report on which Stuckey had relied contained a number of errors: It listed seven prior criminal convictions and dispositions that are not part of petitioner's criminal history, including driving while intoxicated, theft in the second degree, and three controlled substance offenses. It indicated that petitioner had a criminal conviction in the United States in 1975, even though petitioner did not come to the United States until 1980. Stuckey was unaware of the errors, and in fact made several references to petitioner's criminal history in his evaluation. Stuckey highlighted what he perceived as inconsistencies between information provided by petitioner and information in the PSI:

" While [petitioner] asserted that he came to the United States in 1980, the PSI indicated that in 1975, he was convicted of THEFT IN THE SECOND DEGREE and a driving offense was noted. * * *

(Capitalization in original.) Stuckey further stated that petitioner was convicted of two domestic violence offenses, although he has only one such conviction. Stuckey opined that petitioner " minimized" his criminal activity and that " he did not appear to have a mature, sophisticated, or remorseful attitude regarding his criminal behavior. There was much blame ...

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