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Smith v. Bd. of Parole & Post-Prison Supervision

Court of Appeals of Oregon

January 22, 2015

ARLEN PORTER SMITH, Petitioner,
v.
BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent

Submitted March 13, 2013

Arlen Porter Smith filed the briefs, Pro se.

John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Tiffany Keast, Assistant Attorney General, filed the brief for respondent.

Before Duncan, Presiding Judge, and Haselton, Chief Judge, and Schuman, Senior Judge.

OPINION

Page 246

[268 Or.App. 458] Board of Parole and Post-Prison Supervision

HASELTON, C. J.

The issue presented in this case is whether an individual who is subject to the parole consideration provisions for a dangerous offender, ORS 144.228, has a right to subpoena witnesses for that parole consideration hearing. The Board of Parole and Post-Prison Supervision (board) concluded that petitioner had no such right, and issued an order, Board Action Form (BAF) 16, quashing two subpoenas that petitioner's attorney had issued to two individuals. Petitioner seeks review of Administrative Review Response (ARR) 12, in which the board denied petitioner's request for relief from BAF 16. Petitioner also seeks review of ARR 13 in which the board denied his request for relief from BAF 17, concerning the board's deferral of his parole consideration date for another two years. We conclude that petitioner had no right to subpoena witnesses in his parole consideration hearing, and affirm.

Petitioner was convicted in 1984 for the offenses for which he is incarcerated and has appeared before the board for parole consideration hearings every two years, beginning in 2001. Because petitioner was sentenced as a dangerous offender, ORS 161.725, ORS 161.735, and ORS 161.737, his parole consideration hearings follow the provisions of ORS 144.228. Under ORS 144.228, the board is directed to give petitioner a release date if the board " finds the prisoner no longer dangerous or finds that the prisoner remains dangerous but can be adequately controlled with supervision and mental health treatment." ORS 144.228(1)(b)(A). ORS 144.228 sets forth the nature of the hearing that the board is to conduct in making that determination. Subsection (2) provides, in pertinent part:

" For the parole consideration hearing, the board shall cause to be brought before it and consider all information regarding such person. The information shall include:
" (a) The written report of the examining psychiatrist or psychologist which shall

Page 247

contain all the facts necessary to assist the State Board of Parole and Post-Prison Supervision in making its determination. The report of the examining psychiatrist or psychologist shall be made within two months of the date of its consideration; and
[268 Or.App. 459] " (b) A written report to be made by the executive officer of the Department of Corrections institution in which the person has been confined. The executive officer's report shall contain:
" (A) A detailed account of the person's conduct while confined, all infractions of rules and discipline, all punishment meted out to the person and the circumstances connected therewith, as well as the extent to which the person has responded to the efforts made in the institution to improve the person's mental and moral condition.
" (B) A statement as to the person's present attitude toward society, toward the sentencing judge, toward the prosecuting district attorney, toward the arresting police officer and toward the person's previous criminal career.
" (C) The work and program record of the person while in or under the supervision of the Department of Corrections. The program history shall include a summary of any psychological or substance abuse treatment and other activities that will assist the board in understanding the psychological adjustment and social skills and habits of the person and that will assist the board in determining the likelihood for successful community reentry."

The parole consideration hearing at issue in this case was set for July 8, 2009. On June 9, 2009, Dr. Templeman, a clinical psychologist who was appointed to examine petitioner prior to his parole consideration hearing, wrote a letter to the board, explaining that petitioner had twice refused to participate in a psychological evaluation with him.[1] " The problem," Templeman stated, " seems to be that [petitioner] insists on an audio recording of the entire interview and evaluation. * * * I do not allow audio or video * * * recording of my psychological interviews or testing sessions[.]" [2]

On June 17, petitioner, through his attorney, issued subpoenas duces tecum to Templeman and Mills, the Superintendent of the Two Rivers Correctional Institution. [268 Or.App. 460] The subpoenas ordered, inter alia, that Templeman and Mills appear at petitioner's parole consideration hearing on July 8, and bring all records pertaining to the reports that each made regarding petitioner.[3] Prior to the hearing, the board sent petitioner's attorney a letter, notifying her that the board was aware of the subpoenas. The board further stated in the letter that it " lack[ed] authority to authorize or enforce subpoenas in hearings of this kind[.]" At petitioner's July 8 hearing, the board referred again to the subpoenas:

" [T]urn to the subpoenas that [petitioner's] attorney has issued in the Board's name on your behalf. Those subpoenas were issued for records and for personal appearance at this hearing to [Mills and Templeman]. The Board has received the information * * *--that those were issued. We have the copies that were submitted by [petitioner's] attorney, and also we had received information from Dr. Templeman. The Board is going to order that these subpoenas, and any others issued for this hearing, are quashed and disallowed on the ground that they are not authorized by law. And the Board ...

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