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Engweiler v. Persson

Supreme Court of Oregon, En Banc

December 12, 2013

ROB PERSSON, Superintendent, Oregon State Correctional Institution, Defendant. CONRAD R. ENGWEILER, Petitioner,

Argued and submitted June 4, 2013

On petition for writ of habeas corpus and certified appeal from the Court of Appeals. CA A152445

Andy Simrin, Andy Simrin PC, Portland, argued the cause and filed the briefs for plaintiff/petitioner.

Jeremy Rice, Assistant Attorney General, Salem, argued the cause for defendants/respondents. With him on the brief were Mary H. Williams, Deputy Attorney General, and Anna M. Joyce, Solicitor General.


In these consolidated cases, plaintiff seeks immediate release from prison. In his case against the superintendent of the institution in which he is incarcerated, plaintiff seeks habeas corpus relief on the ground that the Board of Parole and Post-Prison Supervision (the board) has set a release date for him in 2018, but, when sentence reduction credits that he has earned under ORS 421.121 for appropriate institutional behavior (earned-time credits) are taken into account, his release date has passed; therefore, his continued incarceration is unlawful. In his administrative rule challenge, plaintiff argues that, to the extent that certain Department of Corrections (DOC) rules pertaining to the granting of earned-time sentence reductions are construed to exclude him from eligibility for such reductions, they are invalid.[1] For the reasons explained below, we conclude that, although -- in light of precedent that this court will follow based on principles of stare decisis -- plaintiff is entitled to have his term of incarceration reduced by earned-time credits, he is not entitled to habeas corpus relief, because the board has not yet performed its prerelease functions under ORS 144.125. We also conclude that it is unnecessary to address plaintiff's rule challenge. Accordingly, we dismiss plaintiff's petitions in both cases.


These cases come to us with a distinctive and complex background. To set the stage for our discussion of the issues before us, we summarize the pertinent history of the extensive litigation between the parties. Plaintiff committed aggravated murder in 1990, when he was 15 years old. He was tried as an adult. He was convicted of that crime, and the trial court sentenced him to life in prison with a 30-year mandatory minimum term of imprisonment under ORS 163.105(1)(c) (1989). Plaintiff appealed, arguing, among other things, that the sentence that the trial court imposed was unlawful because ORS 161.620 (1989) prohibited trial courts from imposing a mandatory minimum sentence on any person who had been remanded from the juvenile court and was under 17 years of age when he or she committed the crime on which the remand was based. The Court of Appeals agreed with that argument and vacated the sentence. State v. Engweiler, 118 Or.App. 132, 136, 846 P.2d 1163, rev den, 317 Or 486 (1993) (Engweiler I ).[2] In 1994, plaintiff was resentenced to life in prison. In 1999, the board conducted a prison term hearing on plaintiff's behalf, under rules that it had adopted earlier that year, the "Juvenile Aggravated Murder" or so-called "JAM" rules. At the conclusion of that hearing, the board issued an order establishing a 480-month murder review date.

Plaintiff sought judicial review of that order. The Court of Appeals held that the board's order setting the review date was not subject to judicial review, Engweiler v. Board of Parole, 197 Or.App. 43, 103 P.3d 1201 (2005) (Engweiler II), and this court affirmed that decision. Engweiler v. Board of Parole, 340 Or 361, 133 P.3d 910 (2006) (Engweiler III). Plaintiff next sought a writ of mandamus ordering DOC to accelerate his 480-month review date based on earned-time credits in accordance with ORS 421.121(1). State ex rel. Engweiler v. Cook, 340 Or 373, 133 P.3d 904 (2006) (Engweiler IV). In that case, this court stated that the phrase "term of incarceration" in ORS 421.121(1) refers to "the amount of time that an inmate must spend in prison before the inmate is eligible for parole." Id. at 380. The court further held that, although the review date amounted to a 480-month "prison term" for plaintiff under the JAM rules, the board had not, at that point, given him a release date and, therefore, he did not yet have a term of incarceration under ORS 421.121(1) against which earned-time reductions could be credited. Id. at 383.

Thereafter, in Engweiler V, this court answered certified questions from the United States District Court for Oregon pertaining to the operation and effects of the JAM rules. In doing so, the court observed, as it had earlier in Engweiler IV, that, after the adoption of the sentencing guidelines system in 1989, juveniles who commit aggravated murder are "a small class of inmates who continued to receive indeterminate sentences, " Engweiler IV, 340 Or at 381, and who, under ORS 161.620 (1989), were entitled to parole consideration. Engweiler V, 343 Or at 545. However, the court ultimately rejected plaintiff's contention that the prison terms set by the board under the JAM rules were "mandatory minimum sentences" within the meaning of, and therefore prohibited by, ORS 161.620 (1989). Id. at 553.

Plaintiff later brought a mandamus action in this court to compel the board to conduct a hearing and establish an initial release date for him under ORS 144.120(1)(a) (1989). In deciding that case, this court reiterated that,

"in Engweiler IV, this court described [plaintiff's] sentence as 'life imprisonment with the possibility of release or parole' and observed that [plaintiff] was in the same position as an inmate serving an indeterminate sentence before the adoption of the guidelines sentencing scheme: The board is responsible for determining the actual duration of his imprisonment."

Engweiler VII, 350 Or at 607. The court concluded in Engweiler VII that ORS 144.120(1)(a) applied to juveniles convicted of aggravated murder and that it required the board to conduct parole hearings for those juveniles. Id. at 621. The court further concluded that the JAM rules requiring juveniles convicted of aggravated murder to undergo an intermediate process before they become eligible for parole consideration exceeded the board's rulemaking authority and were invalid because they were inconsistent with the statutes requiring the board to conduct a parole hearing and set an initial release date for that category of offenders, unless the board declines to do so under ORS 144.120(4). Id. at 627. The court ultimately concluded, however, that plaintiff was not entitled to the remedy of mandamus, because the board had no plain legal duty to set a release date given the terms of ORS 144.120(4), which permitted the board not to set a release date where it was able to explain why it had chosen not to do so. Id. at 628-29.

In the wake of this court's decision in Engweiler VII, the board set plaintiff's initial parole release date for February 2018. At plaintiff's request, on August 9, 2012, DOC's sentence computation unit calculated his earned-time credit to be 1, 929.75 days. According to plaintiff, when added to his credit for time served, that earned time calculation meant that he should have been released from physical custody on July 17, 2012.[3] In essence, plaintiff asserts that his earned-time credits function to advance his initial release date set by the board and that his new release date already has passed, effectively requiring his immediate release. To date, however, plaintiff remains in physical custody at the Oregon State Correctional Institute (OSCI), a facility within DOC.

To press his claim, plaintiff filed both this direct habeas corpus proceeding and this administrative rule challenge under ORS 183.400 against certain rules adopted by DOC. In December 2012, this court issued an order to defendant Persson, the superintendent of OSCI, to show cause why a writ of habeas corpus should not be issued. Defendants filed a response, and the parties' positions, as joined in their briefs, are elaborated in greater detail below.


ORS 421.121 provides, in part:
"(1) Except as provided in ORS 137.635, each inmate sentenced to the custody of the Department of Corrections for felonies committed on or after November 1, 1989, is eligible for a reduction in the term of incarceration for:
"(a) Appropriate institutional behavior, as defined by rule of the Department of Corrections[.]"[4]

The first question before us is whether, despite the fact that plaintiff was convicted of aggravated murder and received an indeterminate sentence for that conviction, this court already has authoritatively decided that he is entitled to a reduction in a "term of incarceration" based on appropriate institutional behavior -- that is, earned time -- under ORS 421.121(1)(a). Plaintiff contends that this court so decided in Engweiler IV. Defendants respond that this court's pronouncements on that issue in Engweiler ...

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