Submitted: October 4, 2013.
Board of Parole and Post-Prison Supervision.
Douglas R. Miller filed the briefs Pro se.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jeremy C. Rice, Assistant Attorney General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[261 Or.App. 796] EGAN, J.
Petitioner seeks judicial review of an order of the Board of Parole and Post-Prison Supervision (board) that assigned him a projected parole-release date of March 11, 2012. He contends that the board lacked the authority to recalculate his previously assigned " matrix" prison term and that the board improperly set his projected parole-release date for a time that was approximately six months later than it should have been. For the following reasons, we dismiss the petition.
Petitioner was tried and convicted of aggravated murder. In September 1982, he was sentenced to a minimum of 30 years in prison without the possibility of parole pursuant to ORS 163.105(1) (1981), which prescribed that sentence for certain types of aggravated murder. Shortly after petitioner's sentence began to run, the board issued a board action form (BAF) providing that petitioner's matrix range was 120 to 168 months. In 1988, the board set a parole-release date for petitioner of February 1, 2012. In 1990, the board rescinded that release date, explaining that it did not have the authority to set parole-release dates for prisoners serving aggravated-murder sentences unless the prisoner had been found likely to be rehabilitated within a reasonable period of time. At the time of petitioner's sentencing, a prisoner serving time for aggravated murder--as defined in ORS 163.095(1)--could, after 20 years of incarceration, petition the board to find that the prisoner was " likely to be rehabilitated within a reasonable period of time." ORS 163.105(3) (1981). If the board made such a finding, ORS 163.105(4) (1981) directed the board to " convert the terms of the prisoner's confinement" to life in prison with the possibility of parole.
In 2008, the board found that petitioner was likely to be rehabilitated within a reasonable time. Accordingly, the board converted petitioner's sentence to life in prison with [261 Or.App. 797] the possibility of parole. As to a projected release date, the board apparently took the position that it could not parole a prisoner serving an aggravated murder sentence before that prisoner had served the 30-year minimum prescribed by ORS 163.105(1) (1981), regardless of a board finding that the prisoner was likely to be rehabilitated. Accordingly, the board set a " projected parole release date" of March 11, 2012, the date that also marked the end of petitioner's 30-year minimum sentence.
In 2010, the Oregon Supreme Court addressed the issue of parole in the context of an aggravated-murder sentence in Janowski/Fleming v. Board of Parole, 349 Ore. 432, 245 P.3d 1270 (2010). In that case, the board argued that it lacked the authority to grant parole to a prisoner incarcerated for aggravated murder before the 30-year minimum term announced by ORS 163.105(1) (1985) had run. The court concluded otherwise, stating that ORS 163.105 (1985) " gave the board the authority to override the 30-year mandatory minimum sentence for aggravated murder, and to consider releasing a prisoner on parole after 20 years, upon a finding that the prisoner is likely to be rehabilitated within a reasonable time." Janowski, 349 Ore. at 446.
Several months after Janowski was announced, the board informed petitioner--then in his 29th year of confinement--that it would hold a hearing for the purpose of determining petitioner's " prison term under the matrix system." That hearing took place in July 2011. At that hearing, the board told petitioner that it would calculate petitioner's
matrix score according to the laws in effect at the time of his crime. The board then determined that petitioner's matrix term was 276 months, a term that was 108 months longer than the high end of the matrix range that the board had assigned petitioner in 1982. That disparity arose because the board applied aggravating factors that it had not applied in 1982. Under either ...