Argued and Submitted, July 31, 2014
Board of Parole and Post-Prison Supervision.
Marc D. Brown, Deputy Public Defender, argued the cause for petitioner. On the opening brief were Peter Gartlan, Chief Defender, and Jedediah Peterson, Deputy Public Defender, Office of Public Defense Services. With him on the reply brief was Peter Gartlan, Chief Defender.
Ryan Kahn, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before DeVore, Presiding Judge, and Ortega, Judge, and Garrett, Judge.[*]
[270 Or.App. 690] GARRETT, J.
Petitioner seeks judicial review of an order of the Board of Parole and Post-Prison Supervision (the board), in which the board denied his request for a periodic review hearing. In its 2012 order, the board construed petitioner's request for periodic review as a request to reopen and reconsider a previous decision of the board, and it denied that request. In the alternative, the board construed petitioner's request as a new request for an early parole consideration hearing and denied that request also. In his request for judicial review, petitioner challenges the board's denial of his request for periodic review. He does not challenge the board's denial of his request for an early parole consideration hearing.
The board contends that petitioner's request for judicial review is improper because the board's denial of petitioner's request to reopen and reconsider a previous board action
was not a " final order" that is subject to judicial review under ORS 144.335(1). Petitioner disagrees with the board's characterization of his request; he contends that he did not ask the board to reopen and reconsider any previous decision, but, rather, sought a different form of relief. As explained below, we agree with the board's view of the record in this case and conclude that petitioner's request to the board was properly understood as a request for reconsideration, even if petitioner did not label it as such. For that reason, we conclude that the board's 2012 order was not a final order subject to judicial review, that we therefore lack jurisdiction, and that the request for judicial review must be dismissed.
Petitioner is serving sentences totaling 105 years for violent crimes that he committed in 1983. At his sentencing in 1985, petitioner was designated a dangerous offender under ORS 161.725 (1983). At a 1986 prison-term hearing, the board denied parole and set petitioner's parole date for February 24, 2090.
In 2008, petitioner sent a letter to the board that stated, in relevant part:
" I am writing to request that your office schedule me for a parole consideration hearing in relation to the dangerous [270 Or.App. 691] offender sentences that I am currently serving. Please schedule me for a Parole consideration hearing concerning the dangerous offender sentences I received in Multnomah County Circuit Court Case NO. C85-03-31060 as soon as possible."
A week later, the board replied to petitioner's request in Board Action Form (BAF) 3, which stated the following:
" Board notes letter from inmate indicating that he feels that he is no longer a danger to the community and requesting an Early Parole Consideration hearing. [Petitioner's] 1 page letter dated January 9, 2008, was insufficient to establish reasonable cause for the Board to believe that he is no longer dangerous or that necessary supervision and treatment are available. Early Parole Consideration hearing request denied. Parole Consideration hearing should remain 2/24/2090."
Petitioner requested administrative review of BAF 3. Petitioner's request is not in the record. In Administrative Review Response (ARR) 1, the board responded, in relevant part, as follows:
" In your administrative review request, you assert that the Board misunderstood the request that was the subject of BAF #3, and that you were asking for a parole consideration hearing that you allege the Board is required to hold under ORS 144.228[(1)](b), and OAR 255-40-005(4) (1982). The Board does not find your claim that the Board misconstrued your letter persuasive. The Board finds that it properly construed the request as a request for an early [270 Or.App. 692] parole consideration hearing because 2008 is well short of 2090.
" Next, you appear to allege that the Board must review your case every two years from the inception of your incarceration. As an initial matter, the Board notes that section 4 of OAR 255-40-005, which you cite, was effective February 1, 1979, and was repealed effective May 19, 1982, and therefore that rule is not applicable to your case and will not be discussed here.
" Next, the Board directs your attention to the statute you cite, ORS 144.228[(1)](b) (1981), which contrary to your apparent allegation, requires only that the
Board set a date for a parole consideration hearing, at 'the earliest time the prisoner is eligible for parole under the Board's rules.' You have failed to establish that the two-year review period provided for under ORS 144.228 (1981) begins now, or began in the past, considering that you received no votes to override your minimum term of 105 years. At the very least, your minimum ...