Argued and submitted March 20, 2013.
David O. Ferry, Deputy Public Defender, argued the cause for petitioner. With him on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Jeff J. Payne, Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and DUNCAN, Judge.
SCHUMAN, P. J.
[260 Or.App. 231] Petitioner seeks review of an order of the Board of Parole and Post-Prison Supervision (board) denying his request for a parole consideration hearing. As explained below, we conclude that the board erred in determining that petitioner will not be eligible for parole consideration until 2038. We therefore reverse and remand the board's order for further proceedings.
Petitioner was convicted on two counts each of attempted aggravated murder, first-degree assault, and first-degree robbery. Those crimes occurred on January 11, 1993. In an earlier iteration of this case, petitioner appealed, arguing that, in setting a parole provision of his dangerous offender sentences on the two attempted aggravated murder convictions, the trial court had incorrectly applied a statute not in effect when he committed his crimes. State v. Dizick, 137 Or.App. 486, 905 P.2d 250 (1995), rev. den., 322 Or. 490, 909 P.2d 162 (1996). The state conceded the error, but argued that, under ORS 144.232 (1991), which was in effect when petitioner's crimes were committed, the effect was, in essence, the same as what the trial court had provided, and that there was no need for resentencing. Id. at 489-90, 905 P.2d 250. Although we agreed with the state as to the applicability of ORS 144.232 (1991), we disagreed that there was no need for resentencing. Id. at 490-91, 905 P.2d 250. As petitioner had pointed out, when he was sentenced, the trial court had not determined a presumptive sentence established under ORS 161.737 for the offenses for which a dangerous offender sentence was being imposed. Id. at 490, 905 P.2d 250. We concluded:
[260 Or.App. 232] " ORS 144.232 (1991), therefore, does apply, and the trial court was authorized to impose a term of post-prison supervision. The trial court, however, did not do that; nor did it determine the crime seriousness classification for defendant's crimes, calculate the presumptive sentence or make the appropriate record as required by OAR 253-04-004 [concerning crime classification of attempted aggravated murder]."
905 P.2d 250
On resentencing, the trial court imposed a dangerous offender sentence of 354 months' imprisonment on one of the attempted aggravated murder counts, and a consecutive sentence of 242 months' imprisonment on the second attempted aggravated murder count; it further provided, " Post-prison supervision for both dangerous offender charges, counts 5 and 6, shall be the remainder of time unserved defendant was sentenced to on these charges." In sum, the court appears to have imposed an indeterminate 30-year dangerous offender sentence on one count of attempted aggravated murder, and an indeterminate 20-year dangerous offender sentence on the other count of attempted aggravated murder, but— again— it did not calculate the presumptive sentences for those offenses as required by ORS 161.737(2) (1991) (and, for that matter, our opinion remanding the case to the court in order for it to do so).
In December 2008, petitioner contacted the board, seeking a parole consideration hearing. The board initially stated, in response to petitioner's request, that " there is no reasonable cause to believe that offender is no longer dangerous or that necessary supervision and treatment are available," that petitioner's request for a parole consideration hearing was denied, and that his " parole consideration date will remain February 11, 2038."  Petitioner sought ...