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Jones v. Board of Parole and Post-Prison Supervision

Court of Appeals of Oregon

February 15, 2017

JOHN RAY JONES, Petitioner,
v.
BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.

          Argued and Submitted March 10, 2015

         Board of Parole and Post-Prison Supervision

          Lindsey Burrows, Deputy Public Defender, argued the cause for petitioner. With her on the brief was Peter Gartlan, Chief Defender, Offce of Public Defense Services.

          Andrew M. Lavin, 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 Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

         Case Summary: The Board of Parole and Post-Prison Supervision (the board) postponed petitioner's parole release date based on a fnding that he had a present severe emotional disturbance (PSED) that constituted a threat to the health or safety of the community. That fnding was based on a psychological evaluation of petitioner conducted prior to his release date. The board later reopened the case for administrative review. As part of the review process, and after petitioner's release date had passed, the board ordered petitioner to undergo a second psychological evaluation and exit interview. The board ultimately affrmed its earlier decision to postpone petitioner's release based primarily on the second evaluation. Petitioner seeks judicial review arguing that the record-which he contends should only encompass the frst psychological evaluation-does not support a fnding that he had a PSED and, as such, the board's decision to postpone release is not supported by substantial evidence and substantial reason. Further, petitioner argues that the board was not allowed to rely on the second evaluation and exit interview to justify its earlier decision to defer his release date. Held: Because the board determined that the frst psychological evaluation alone was insuffcient to support a fnding that petitioner had a PSED, the dispositive issue was whether the board was allowed to consider the second psychological evaluation and to supplement its reasoning for postponing petitioner's release date. On that issue, the Court of Appeals concluded that the board erred in relying on the second psychological evaluation to support its fnding that petitioner had a PSED.

         Reversed and remanded.

          ORTEGA, P. J.

         The Board of Parole and Post-Prison Supervision postponed petitioner's parole release date based on a finding that he had a present severe emotional disturbance (PSED) that constituted a threat to the health or safety of the community. That finding was based on a psychological evaluation of petitioner conducted in 2011, prior to his scheduled release date. The board later reopened the case for administrative review of its order. As part of the review process, and after petitioner's release date had passed, the board ordered him to undergo a second psychological evaluation and exit interview. The board ultimately affirmed its earlier decision to postpone petitioner's release based primarily on the second evaluation. Petitioner seeks judicial review, raising several interrelated arguments. Generally, he argues that the record-which he contends should only encompass the first psychological evaluation- does not support the board's initial finding that he had a PSED and, as such, the board's decision is not supported by substantial evidence and substantial reason. Further, petitioner argues that the board was not authorized to rely upon the second psychological evaluation and exit interview to justify its earlier decision to defer his release date. As we explain below, we agree with petitioner. Reviewing the board's determinations for legal error, Porter v. Board of Parole. 281 Or.App. 237, 238, 383 P.3d 427 (2016), we reverse and remand.

         We begin with the relevant history of these proceedings. On May 30, 1988, at age 17, petitioner murdered a young woman. He was convicted of murder and third-degree robbery and was ultimately sentenced to life in prison with the possibility of parole. See State v. Jones, 315 Or 225, 844 P.2d 188 (1992) (vacating petitioner's mandatory minimum sentence). The board set petitioner's parole release date for June 30, 2012.

         In September 2011, in anticipation of petitioner's release date, petitioner underwent a psychological evaluation conducted by Dr. Templeman. As part of that evaluation, petitioner participated in several assessments, the results of which were generally positive. In his evaluation, Templeman observed that petitioner was "clearly prepared for the interview, alert and well oriented, and displayed no symptoms of major depression, loose associations of thought or hyperactivity." With regard to petitioner's personality functioning, Templeman's report indicated that petitioner was less defensive than in a previous assessment and that he represented "one of the best adjusted types of offenders in institutional settings." He added that petitioner's profile was "relatively free from any mood disorder, psychotic disorder, or schizoid adjustment, and reflect[ed] a positive attitude toward authority, an acknowledgment of risk for substance abuse, but also some lingering alienation from family." Templeman diagnosed petitioner with Mixed Personality Disorder with Cluster B Features; however, he concluded that petitioner's "risk for violent activity upon release is relatively low and will likely remain so if he participates in follow up treatment to maintain abstinence from drugs and alcohol and personal therapy."

         In November 2011, the board conducted an exit interview with petitioner during which the board asked petitioner about his crime and future parole plans. Shortly thereafter, the board issued Board Action Form (BAF) 12 in which it found that petitioner had a PSED. That order states:

"The Board determines that the psychological evaluation does constitute a finding that you have a present severe emotional disturbance such as to constitute a danger to the health or safety of the community. This determination is based solely on the psychological evaluation. The Board has considered this matter under the * * * substantive standard in effect at the time of the commitment offenses, and under all applicable rules and laws."

(Emphasis added.) Based on that finding, the board postponed petitioner's release date until June 30, 2016. See ORS 144.125(3) (1987), amended by Or Laws 1993, ch 334, ยง 1 ("If a psychiatric or psychological diagnosis of present severe emotional disturbance such as to constitute a danger to the health or safety of the community has been made with respect to the prisoner, the board may order ...


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