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Hartwell v. Board of Parole and Post-Prison Supervision

Court of Appeals of Oregon

July 22, 2015

RICHARD D. HARTWELL, Petitioner,
v.
BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent

Submitted October 31, 2013

Board of Parole and Post-Prison Supervision.

Peter Gartlan, Chief Defender, and Erica Herb, Deputy Public Defender, 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 Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.

OPINION

Page 87

[272 Or.App. 333] ARMSTRONG, P. J.

Petitioner, who was convicted of murder and first-degree arson in 1985, seeks judicial review of an order of the Board of Parole and Post-Prison Supervision that postponed his scheduled release date for eight years, based on its conclusion that he suffers from a present severe emotional disturbance such as to constitute a danger to the health or safety of the community. See ORS 144.125(3). On review, he argues that the board erred in refusing to permit an assistant to speak on his behalf at the hearing and that the board's decision to do that violated various state and federal antidiscrimination laws. We reject the latter arguments without discussion. As to the former argument, we agree with petitioner that the board erred in its application of OAR 255-30-025 (1982) when it required petitioner to choose between having his mother speak at the hearing or having his inmate legal assistant do that. Accordingly, we reverse and remand.

The pertinent facts are procedural and not in dispute. Petitioner is serving a life sentence. Petitioner became eligible for parole in 1997, and his projected parole release date has been deferred on numerous occasions since that time based on findings of present severe emotional disturbance and institutional misconduct. The present case concerns petitioner's 2010 parole exit interview, which, as noted, resulted in a postponement of his release for an additional eight years.

Petitioner was scheduled for a hearing on August 4, 2010. The hearing notice for his hearing indicated that " inmate legal assistants [are] available through the legal library who can assist you in preparing for the hearing, and who may accompany you to the hearing." Additionally, the notice provided: " You may be accompanied by one person of your choice to the hearing, who may make a statement on your behalf."

At the hearing, petitioner was accompanied by an inmate legal assistant, David Atkinson. The following exchange occurred:

[272 Or.App. 334] " [BOARD CHAIR:] Okay. And before we proceed any further, [petitioner], you have the option of having someone speak on your behalf. And that can be someone of your choosing. And your mother is here and also Mr. Atkinson is here. And it is up--it's purely up to you whether you wish to have someone speak and who that is and--
" [PETITIONER:] Your Honor.
" [BOARD CHAIR:] Who might that ...

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