Argued and Submitted October 31, 2013
Board of Parole and Post-Prison Supervision.
Kyle Krohn, Deputy Public Defender, argued the cause for petitioner. On the brief were Peter Gartlan, Chief Defender, and Jonah Morningstar, Deputy Public Defender, Office of Public Defense Services.
Gregory A. Rios, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Ryan Kahn, Assistant Attorney General.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[272 Or.App. 184] ARMSTRONG, P. J.
Petitioner seeks review of a Board of Parole and Post-Prison Supervision order that deferred petitioner's parole release date from December 2009 to December 2011. He assigns error to the board's decision to defer his release date, which was based on its finding that petitioner had a " present severe emotional disturbance" (PSED). Petitioner contends that the board could make that finding only if the psychological report evaluating petitioner formally diagnosed petitioner as having a PSED. Consequently, he argues that, because the psychological report explicitly stated that he did not have a PSED, the board could not defer his release date. We disagree and, for the reasons explained below, affirm the board's order.
Petitioner committed murder during a drug transaction in March 1989. He was sentenced to life in prison with the possibility of parole after a 20-year minimum term of incarceration and assigned a release date of December 26, 2009. Petitioner was sentenced under the " matrix" system, which required the board to assign petitioner an initial parole release date within a specified time of being admitted to an Oregon correctional institution. See ORS 144.120(1) (1989),
amended by Or. Laws 1991, ch 126, § 6. Under ORS 144.125(3) (1989), amended by Or. Laws 1993, ch 334, § 1, the board was allowed to modify that release date " if a psychiatric or psychological diagnosis of [PSED]" was made. At the time that defendant committed his crime, the board had adopted OAR 255-60-006 (1988), which provided that the board could defer an inmate's release date by up to 24 months if the inmate had a PSED. As part of that process, the board could order that a psychologist examine the inmate and document the psychologist's findings regarding the inmate. See OAR 255-60-006 (1988).
[272 Or.App. 185] In anticipation of petitioner's 2009 parole-consideration hearing, the board ordered that a psychologist examine petitioner. The psychologist's report states:
" [Petitioner] does not suffer from a severe emotional disturbance such as to constitute a danger to the community. Diagnosis would be Antisocial Personality, and, by history, Alcohol and Polysubstance Dependence.
" * * * [Petitioner's] record is clearly one of a very habitual criminal, some of his criminal history seemingly quite professional in the sense of being [a] planned-out, daily life-style, somewhat analogous to that by which most of us go to our jobs. Given the depth of that history, there would be concern that he would return to illegal activity, most likely [of] a larcenist or drug[-]trafficking nature, and any potential for violence would probably be ancillary to that lifestyle. Such danger would be considered significant, although not nearly as acute as that for an inmate with a more habitually aggressive arrest record, or a record of volatility within the institution. He has kept control ...