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King v. Board of Parole and Post-Prison Supervision

Court of Appeals of Oregon

February 15, 2017

ROBERT HADEN KING, Petitioner,
v.
BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.

          Argued and Submitted January 26, 2016.

         Board of Parole and Post-Prison Supervision

          Marc D. Brown, Deputy Public Defender, argued the cause for petitioner. With him 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 Paul L. Smith, Deputy Solicitor General.

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

         Case Summary: Petitioner seeks review of a final order of the Board of Parole and Post-Prison Supervision. The board found that petitioner had not persuaded it that he is likely to be rehabilitated within a reasonable period of time and declined to convert petitioner's life sentence without possibility of parole to life with possibility of parole. Petitioner contends that a number of the subsidiary factual findings on which the board relied in reaching that conclusion are not supported by substantial evidence in the record and that the order is not supported by substantial reason. Held: Three of the factual findings underlying the board's conclusion that petitioner did not prove that he was likely to be rehabilitated within a reasonable period of time were not supported by substantial evidence in the record.

         Reversed and remanded.

          LAGESEN, J.

         Petitioner seeks review of a final order of the Board of Parole and Post-Prison Supervision following a murder review hearing. ORS 144.335(1). In that order, the board found that petitioner had not persuaded it that he is likely to be rehabilitated within a reasonable period of time and, for that reason, declined to convert petitioner's life sentence without the possibility of parole for aggravated murder to life with the possibility of parole. On review, petitioner contests a number of the subsidiary factual findings on which the board relied to determine that he had not demonstrated that he is capable of rehabilitation within a reasonable period of time, contending that those factual findings are not supported by substantial evidence in the record and that the order is not supported by substantial reason. See ORS 144.335 (providing that ORS 183.482(8) governs review of board orders); ORS 183.482(8)(c) (providing for substantial evidence review). Because we agree with petitioner that substantial evidence does not support three of the factual findings on which the board relied in reaching its ultimate determination, we reverse and remand to the board for reconsideration on that basis, ORS 183.482(8)(c), and do not reach petitioner's substantial reason argument.

         Petitioner is serving a life sentence under ORS 163.105 (1979)[1] for the 1980 aggravated murder of a 32-year-old woman. In 2012, the board held a murder review hearing to determine whether petitioner was likely to be rehabilitated within a reasonable period of time. See ORS 163.105(2). Had the board made that finding, it would have been permitted to convert the terms of petitioner's imprisonment from life to life with the possibility of parole or work release. ORS 163.105(3). However, the board found that it was not persuaded by petitioner's evidence that he was likely to be rehabilitated within a reasonable period of time and, consequently, did not convert the terms of petitioner's imprisonment to life with the possibility of parole or work release.

         In reaching that conclusion, the board considered various factors listed in its administrative rule governing murder review hearings, OAR 255-032-0020, and made factual findings in connection with the factors it deemed applicable. The rule provides:

"The sole issue of the hearing described in OAR 255-032-0015 shall be to determine whether or not the inmate is likely to be rehabilitated within a reasonable period of time. Criteria indicating whether the inmate is likely to be rehabilitated prior to release include:
"(1) The inmate's involvement in correctional treatment, medical care, educational, vocational or other training in the institution which will substantially enhance his/ her capacity to lead a law-abiding life when released;
"(2) The inmate's institutional employment history; "(3) The inmate's institutional ...

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