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Washington v. Board of Parole & Post-Prison Supervision

Court of Appeals of Oregon

February 4, 2015

TYRONE WASHINGTON, Petitioner,
v.
BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent

Submitted April 22, 2014.

Board of Parole and Post-Prison Supervision.

Peter Gartlan, Chief Defender, and Morgen E. Daniels, Deputy Public Defender, Office of Public Defense Services, filed the brief for petitioner.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jeremy C. Rice, Assistant Attorney General, filed the brief for respondent.

Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.

OPINION

[268 Or.App. 776] HADLOCK, J.

Petitioner, who was convicted of aggravated murder, first-degree kidnapping, and first-degree robbery in 1987, challenges an order of the Board of Parole and Post-Prison Supervision setting his projected parole release date for July 22, 2016. Petitioner generally contends that the board erred by recalculating his prison term during a recent prison term hearing instead of adhering to various decisions that it made about his incarceration in the late 1980s and the year 2000. As we explain below, only one of the specific arguments that petitioner makes on judicial review is properly before us, and that argument does not establish that the board erred. Accordingly, we affirm.

Page 43

I. BACKGROUND

A. The Parole-Matrix System and Sentencing for Aggravated Murder

We begin by describing the law that was in effect in July 1986, when petitioner committed the crimes at issue. At that point, " Oregon had an indeterminate sentencing scheme * * * and used a parole matrix system for establishing the actual term of imprisonment for most felony offenders." State ex rel Engweiler v. Felton, 350 Or. 592, 598, 260 P.3d 448 (2011).

" Under that system, a trial court imposed an indeterminate sentence of a specified duration on a defendant who had been convicted of a crime. An indeterminate sentence stated only a maximum term to be served * * *. Such a sentence did not establish the length of time that a defendant was to be incarcerated. * * * [F]or prisoners sentenced under the matrix system, the Board [of Parole], not the [sentencing] court, determine[d] the actual duration of imprisonment."

Hamel v. Johnson, 330 Or. 180, 185-86, 998 P.2d 661 (2000).

When a court imposed consecutive sentences, the board had statutory authority to determine whether the prison terms on those sentences would be served consecutively or concurrently. Under ORS 144.785(2) (1985), amended by Or. Laws 1987, ch 634, § 3, if a court imposed consecutive sentences for multiple convictions,

[268 Or.App. 777] " the duration of the term of imprisonment shall be the sum of the terms [for each of the convictions] set by the board * * * provided, however, that the duration of imprisonment may be less than the sum of the terms if the board finds * * * that consecutive sentences are not appropriate penalties for the criminal offenses involved and that the combined terms of imprisonment are not necessary to protect the community security."

The board referred to its options under that statute as " summing" or " unsumming" prison terms. " In general, 'summing' refers to the practice of adding the consecutive terms together, and 'unsumming' refers to the board's determination that consecutive sentences are not appropriate, thus allowing those terms to run concurrently." Corgain v. Board of Parole, 213 Or.App. 407, 420 n 5, 162 P.3d 990 (2007); see OAR 255-35-022 (5/31/85) (further explaining " summing" and " unsumming" ).[1]

Even while the parole-matrix system described above was in effect, a specific statute provided that a person convicted of aggravated murder could be sentenced to life imprisonment with a 30-year minimum term of confinement:

" When a defendant is convicted of aggravated murder * * *, the defendant shall be sentenced to death or life imprisonment * * *. If sentenced to life imprisonment, the court shall order that the defendant shall be confined for a minimum of 30 years without possibility of parole, release on work release or any form of temporary leave or employment at a forest or work camp."

[268 Or.App. 778] ORS 163.105(1) (1985).[2] Another subsection of that statute provided that a person convicted of ...


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