Submitted August 2, 2013.
Board of Parole and Post-Prison Supervision.
Tyrone E. Walton filed the brief Pro se.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Greg Rios, Assistant Attorney General, filed the brief for respondent.
Before Duncan, Presiding Judge, and Haselton, Chief Judge, and Schuman, Senior Judge.
[267 Or.App. 674] HASELTON, C. J.
Petitioner, who is serving consecutive life sentences for aggravated murder, seeks review of an order of the Board of Parole and Post-Prison Supervision (the board), contending that the board committed a variety of procedural errors and erred in concluding that he was not eligible for a " murder review" hearing under ORS 163.105 (1985) in 2009 but could petition for such a hearing in 2011. We need not resolve the merits of petitioner's contentions because, as we will explain, this judicial review proceeding is moot. Accordingly, we dismiss petitioner's petition for judicial review.
In 1988, petitioner was convicted of two counts of aggravated murder, felony murder, and robbery that were predicated on conduct that occurred in 1987 in Multnomah County. He was sentenced to death. The Oregon Supreme Court affirmed petitioner's convictions but vacated the death sentence and remanded for resentencing. State v. Walton, 311
Or. 223, 809 P.2d 81 (1991). Thereafter, in 1993, the trial court, on remand, sentenced petitioner to consecutive life sentences on two counts of aggravated murder and merged the felony murder conviction into one of the aggravated murder convictions. On appeal, we agreed with petitioner that the trial court had erred in failing to merge the robbery conviction with one of the aggravated murder convictions. State v. Walton, 134 Or.App. 66,
894 P.2d 1212, rev den, 321 Or. 429, 899 P.2d 1197 (1995).
In 2007, petitioner petitioned the board for a murder review hearing pursuant to ORS 163.105(2) (1985). That statute provided:
" At any time after 20 years from the date of imposition of a minimum period of confinement pursuant to subsection (1) of this section, the State Board of Parole, upon the petition of a prisoner so confined, shall hold a hearing to determine if the prisoner is likely to be rehabilitated within a reasonable period of time."
The board scheduled a murder review hearing in 2009, indicating that the issue before it would be whether [267 Or.App. 675] petitioner was likely to be rehabilitated within a reasonable period of time. At that hearing, a deputy district attorney from Multnomah County suggested to the board that petitioner was not, in fact, entitled to a murder review hearing at that time, because 20 years had not yet passed from " the date of imposition of a minimum period of confinement." ORS 163.105(1) (1985). Specifically, the deputy district attorney asserted, among other things, that the operative date for purposes of ORS 163.105(1) (1985) was the date on which petitioner was resentenced in 1993, rather than the date on which petitioner was originally sentenced to death in 1988. The board ultimately agreed with the ...