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Smith v. Board of Parole and Post-Prison Supervision

Court of Appeals of Oregon

March 8, 2017

ARLEN PORTER SMITH, Petitioner,
v.
BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.

          Submitted February 6, 2015

         Board of Parole and Post-Prison Supervision

          Arlen Porter Smith fled the briefs pro se.

          Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Joanna L. Jenkins, Assistant Attorney General, fled the brief for respondent.

          Before Duncan, Presiding Judge, and Lagesen, Judge, and Flynn, Judge.

         Case Summary: Petitioner seeks review of a final order by the Board of Parole and Post-Prison Supervision (board) denying him parole and deferring his parole eligibility date for five years. Held: (1) The board did not improperly obstruct petitioner's ability to subpoena witnesses; (2) the board did not err in using a psychologist, as opposed to a psychiatrist, when assessing petitioner's dangerousness; (3) petitioner's claim that the board's order was not supported by substantial evidence was unavailing; (4) petitioner's ex post facto claims were unavailing.

         Affirmed.

          DUNCAN, P. J.

         Petitioner seeks review of a final order by the Board of Parole and Post-Prison Supervision (board) denying him parole and deferring his parole eligibility date for five years. We affirm.

         In 1981, petitioner was convicted of four counts of first-degree burglary and one count of second-degree burglary. Petitioner entered the Oregon State Penitentiary and was released on parole in 1984. Eight days after being paroled, petitioner committed new crimes. As a result of those new crimes, petitioner was sentenced to multiple, consecutive terms of incarceration and was found to be a dangerous offender. In the past decade, petitioner's parole release dates have been repeatedly deferred, and those deferrals have been the subject of judicial review. See, e.g., Smith v. Board of Parole. 268 Or.App. 457, 343 P.3d 245, rev den, 357 Or 550 (2015); Smith v. Mills. 268 Or.App. 454, 342 P.3d 1034, rev den, 357 Or 550 (2015) (Mills).

         The board scheduled a parole consideration hearing for June 8, 2011. Petitioner requested a 60-day postponement of that hearing because he wanted additional time to prepare, and the board granted his request. At the hearing, petitioner admitted that he had multiple disciplinary violations, but contended that he had received the disciplinary reports in retaliation or in error. Petitioner also minimized his role in the crimes leading to his incarceration. He admitted that he had not participated in prison programs in the recent past, but he argued that he was a good worker and sought to have evidence introduced to that effect. The board agreed to leave the record open for 14 days to allow petitioner to present written statements from his employers at the prison. Petitioner was able to provide those statements within the allotted time period. Petitioner asserted that if the board granted him parole, he could work for a law office. In support of this plan, petitioner provided statements from various attorneys.[1]

         In its order, the board, stating that it was "[a]pplying the substantive law in effect at the time of [petitioner's] crime, " determined that petitioner has "a mental or emotional disturbance, deficiency, condition, or disorder predisposing [him] to the commission of any crime to a degree rendering [him] a danger to the health or safety of others" and that petitioner "continue[s] to remain a danger." The board denied petitioner parole and deferred his parole consideration for 60 months.

         Petitioner requested administrative review of the board's decision, asserting that the board's findings were not supported by substantial evidence, and that the board failed to apply the laws in effect at the time of petitioner's crime of conviction and thereby violated Oregon statutes, the Oregon Constitution, and the United States Constitution. In its administrative review response, the board affirmed its initial determination, finding that petitioner "had a mental or emotional disturbance, deficiency, condition, or disorder predisposing [him] to the commission of any crime to a degree rendering [him] a danger to the health or safety of others [, ]" and that petitioner remained "a danger or a menace." Petitioner seeks review of that final order.

         In his petition for review, petitioner raises four assignments of error. We write to address petitioner's first, third, and fourth assignments; we reject ...


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