Argued and Submitted June 17, 2014
Board of Parole and Post-Prison Supervision.
Stephanie J. Hortsch, Deputy Public Defender, argued the cause for petitioner. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Carolyn Alexander, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before DeVore, Presiding Judge, and Haselton, Chief Judge, and Garrett, Judge.
[266 Or.App. 406] HASELTON, C. J.
Petitioner seeks judicial review of an order of the Board of Parole and Post-Prison Supervision (the board), postponing his parole release date for 24 months on the ground that he had " a present severe emotional disturbance such as to constitute a danger to the health or safety of the community." ORS 144.125(3)(a). The dispositive issue on review is whether the board's decision to postpone petitioner's release date is supported by substantial evidence in the record, where petitioner's psychological evaluation states that he " could" constitute a danger to the health or safety of the community. As explained below, we conclude that the board's finding that petitioner's psychological evaluation demonstrated that he had a present severe emotional disturbance that constituted a danger to the health or safety of the community is supported by substantial evidence. Accordingly, we affirm.
A detailed recitation of the historical facts and procedural circumstances giving rise to this case--which have been previously recounted by us and the Supreme Court, see Gordon v. Board of Parole, 343 Or. 618, 175 P.3d 461 (2007) ( Gordon I ); Gordon v. Board of Parole, 246 Or.App. 600, 267 P.3d 188 (2011), rev den, 352 Or. 341, 288 P.3d 275 (2012) ( Gordon II )--would not benefit the bench, the bar, or the public. It is sufficient to note that, in 1975, petitioner raped and murdered a young mother in Roseburg. He was sentenced under what was known as the " discretionary" system to life in prison with the possibility of parole for the murder conviction and a consecutive 20-year indeterminate sentence for the rape conviction.
Thereafter, in 1977, the legislature replaced the " discretionary" system with a new sentencing system-- viz., the " matrix" system. As the Supreme Court explained,
[266 Or.App. 407] " [a]fter the legislature adopted the matrix system, the board adopted a policy under which it would permit inmates like petitioner, who were serving indeterminate sentences [under the discretionary system], to elect to be treated under the new matrix system. Over time, as the board amended its rules pertaining to the implementation of the new system, the board applied a policy under which it would consider each inmate's eligibility for release according to the statute and rules in effect when the inmate committed his or her crimes. For inmates who committed their crimes before the adoption of the matrix system and later elected to be treated under that system, the board applied a policy of determining the inmate's eligibility for parole according to the statute and rules in effect at the time of the inmate's election into the matrix system."
Gordon I, 343 Or. at 622-23. As pertinent here, under the matrix system, once the board sets an initial release date, the board may postpone that date only if, among other reasons, the inmate has " a present severe emotional disturbance such as to constitute a danger to the health or safety of the community." ORS 144.125(3)(a).
Although the parties agree that the matrix system applies to this case, they disagree as to when defendant elected into that system. That is so because, in 1984, petitioner signed a request to be treated under the matrix system. Then, in 1985, the board issued an
order stating that petitioner had signed an application for the purpose of remaining under the discretionary system. Ultimately, in 1988, petitioner again signed a ...