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Bell v. Board of Parole And Post-Prison Supervision

Court of Appeals of Oregon

February 15, 2017

LARRY D. BELL, Petitioner,
v.
BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.

          Submitted October 23, 2015

         Board of Parole and Post-Prison Supervision

          Peter Gartlan, Chief Defender, and Erik Blumenthal, Deputy Public Defender, Offce of Public Defense Services, fled the brief for petitioner.

          Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Karla H. Ferrall, Assistant Attorney General, fled the brief for respondent.

          Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

         Case Summary:

         Petitioner seeks judicial review of a final order delaying parole consideration for 24 months. Petitioner was sentenced as a “dangerous offender” pursuant to ORS 161.725 (1985). On review, petitioner assigns error to the board's finding that, for purposes of ORS 144.228(1)(b) (1985), “the condition which made [petitioner] dangerous” was not “absent or in remission” at the time of his parole-consideration hearing in 2013. Petitioner argues that the board's finding was not supported by substantial evidence become some of the “clinical impressions” presented to the sentencing court in 1986 no longer existed in 2013.

         Held:

         The board's order was supported by substantial evidence. The board was not required to find that the same “clinical impressions” documented at sentencing persisted in order to find that “the condition which made [petitioner] dangerous” was not “absent or in remission.” Instead, the relevant question was whether, at the time of the parole-consideration hearing, petitioner “suffer[ed] from a severe personality disorder indicating a propensity toward criminal activity” within the meaning of ORS 161.725(1) (1985). Here, the record supported a finding that petitioner suffered from such a disorder at the time of the hearing.

         Affirmed.

          GARRETT, J.

         Petitioner was sentenced as a dangerous offender in 1986 based in part on the sentencing court's finding that petitioner "suffer[ed] from a severe personality disorder indicating a propensity toward criminal activity." See ORS 161.725 (1985), amended by Or Laws 1989, ch 790, § 75; Or Laws 2005, ch 463, § 9.[1] Petitioner seeks review of a final order of the Board of Parole and Post-Prison Supervision deferring parole consideration for 24 months based on the board's finding that, at the time of petitioner's 2013 parole-consideration hearing, "the condition which made [petitioner] dangerous" was not "absent or in remission." See ORS 144.228(1)(b) (1985), amended by Or Laws 1993, ch 334, § 3.[2] Petitioner and the board agree that the phrase "the condition which made the prisoner dangerous" in ORS 144.228(1)(b) (1985) refers to the sentencing court's finding that petitioner "suffer[ed] from a severe personality disorder indicating a propensity toward criminal activity." See ORS 161.725(1) (1985). On judicial review, however, petitioner argues that the board's order is not supported by substantial evidence because some of the "clinical impressions" documented in petitioner's psychiatric report from the time of sentencing "were no longer present" at the time of the parole-consideration hearing.

         For the reasons that follow, we conclude that the board's order is supported by substantial evidence. We disagree with petitioner's contention that the board was required to limit its inquiry to the current status of the "clinical impressions" that were presented to the sentencing court. Instead, we conclude that the statute directs the board to consider whether there is evidence that petitioner continues to suffer from a mental disorder that satisfies the terms of the dangerous-offender statute. See State v. Huntley, 302 Or 418, 430, 730 P.2d 1234 (1986) (concluding that the "severe personality disorder" finding is satisfied based on evidence "that the defendant is suffering from a severe mental or emotional disorder indicating a propensity toward continuing dangerous criminal activity" (emphasis in original)). The board may make such a finding even if, at the time of the parole-consideration hearing, some aspects of petitioner's condition that were documented at the time of sentencing are no longer present. Finally, the record supports such a finding in this case, and thus, the board did not err in deferring parole consideration. We reject petitioner's other assignments of error without written discussion.

         We review a final order of the parole board for legal error, substantial evidence, and substantial reason. ORS 144.335(3); ORS 183.482(8); Jenkins v. Board ...


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