Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wille v. Board of Parole and Post-Prision Supervision

Court of Appeals of Oregon

September 13, 2017

MICHAEL PAUL WILLE, Petitioner,
v.
BOARD OF PAROLE AND POST-PRISION SUPERVISION, Respondent.

          Argued and submitted May 24, 2016

         Board of Parole and Post-Prison Supervision

          Kristin A. Carveth, Deputy Public Defender, argued the cause for petitioner. With her on the opening brief was Peter Gartlan, Chief Defender, Offce of Public Defense Services. Michael P. Wille fled the supplemental and reply briefs pro se.

          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 DeVore, Presiding Judge, Garrett, Judge, and Duncan, Judge pro tempore. [*]

         [287 Or. 710] Petitioner seeks review of an order of the Board of Parole and Post-Prison Supervision following an aggravated murder hearing. In that order, the board found that petitioner had not proven by a preponderance of the evidence that he was likely to be rehabilitated within a reasonable period of time and that, because it was not reasonable to expect petitioner to be granted a change in terms of confinement within four years, petitioner should not be granted another hearing before then. On review, petitioner assigns error to both of the board's determinations as not supported by substantial evidence or substantial reason. Held: The board's order was supported by substantial evidence and substantial reason. Petitioner did not meet his burden to show, by a preponderance of the evidence, that he was likely to be rehabilitated within a reasonable period of time. The Court of Appeals declined to address petitioner's second assignment of error- whether the board erred in deferring his next review hearing for four years- because it would have no practical effect. Petitioner has subsequently received a murder review hearing that he contended he should have received earlier.

         Affirmed.

          [287 Or. 711] DEVORE, P. J.

         Petitioner was convicted of aggravated murder and sentenced to life imprisonment.[1] He seeks review of an order of the Board of Parole and Post-Prison Supervision following a hearing held on July 18, 2012. ORS 163.105(2). In that order, the board found that petitioner had not proven by a preponderance of the evidence that he was likely to be rehabilitated within a reasonable period of time, and the board declined to change petitioner's terms of confinement to allow the possibility of parole or work release. The board also determined that, because it was not reasonable to expect petitioner to be granted a change in terms of confinement within four years, petitioner should not be granted another hearing before then. On review, petitioner contends that the board's findings are not supported by substantial evidence and its ultimate conclusion is not supported by substantial reason. ORS 183.482(8)(c). Petitioner also contends that the board erred when it deferred his next murder review hearing for four years because the determination was based on findings that were not supported by substantial evidence or substantial reason. OAR 255-032-0035.[2] We affirm.

         [287 Or. 712]We begin by reviewing for substantial evidence the board's findings in relation to the criteria under OAR 255-032-0020 relating to whether petitioner was likely to be rehabilitated in a reasonable time.[3] "On substantial evidence review, we must determine whether a reasonable person could make the findings that the board made, ORS 183.482(8)(c), and we do not substitute our own view of the evidence for the board's view of the evidence." Dixon v. Board of Parole and Post-Prison Supervision. 257 Or.App. 273, 278, 306 P.3d 716, rev den, 354 Or. 389 (2013); see ORS 183.482(8)(c)[287 Or. 713]("Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding."). Under ORS 163.105(2)(a) it is petitioner's burden to prove that he is capable of rehabilitation in a reasonable time. Therefore, "we examine the record to determine if there was substantial evidence for a reasonable person to conclude that petitioner did not meet his burden, " i.e., substantial evidence for the board's contrary decision. Dixon, 257 Or.App. at 279.

         First, petitioner challenges the board's findings under the fourth factor, regarding the "inmate's maturity, stability, demonstrated responsibility, and any apparent development in the inmate personality which may promote or hinder conformity to law." OAR 255-032-0020(4). He disputes the board's factual findings that he demonstrated a lack of empathy or remorse, exhibited a lack of insight and sensitivity, exhibited "a high level of criminal thinking errors, " and failed to accept responsibility for his crime, "including the uncontroverted history of domestic violence with [the victim]." Petitioner contends that there is no evidence to support those findings given the contrary evidence in the record. He suggests that he expressed remorse at the hearing, and that his psychologists acknowledged his remorse and acceptance of responsibility in their evaluations. He also disputes that there is evidence in the record to support the board's negative characterization of his donation in the victim's name and a gift he gave to his daughters years ago. Petitioner contends that he acknowledged the pattern of domestic violence against the victim and has addressed it with his psychologists.

         Petitioner is incorrect to suggest that, because there is evidence of his remorse and acceptance of responsibility, the board's contrary findings are not supported by substantial evidence. See Weems I Roberts v. Board of Parole, 347 Or. 586, 602-03, 227 P.3d 671 (2010) ("The fact that a reasonable person could also draw a contrary inference, or that reasonable persons might differ in their assessment of the strength of the inference * * * does not mean that the board's implicit finding in that regard is not supported by substantial evidence."). The board's findings could reasonably be made from evidence in the record, including petitioner's testimony[287 Or. 714] and demeanor at the hearing. The board made findings that petitioner "demonstrated a marked lack of empathy and remorse [.]" It found that he displayed a cold demeanor and had a self-centered "orientation" at the hearing. The board found that he showed his selfish and entitled attitude when he persisted in "parading" the victim's name in connection with donations that he has made, despite prior warnings from the board at his previous hearing that such actions were offensive, and when he gave a proud account of using deceit to give his daughters gifts despite their firm intentions to have no relationship with him.

         Petitioner's argument is based in part on his psychologists' conclusions that he exhibited remorse and accepted responsibility-conclusions that the board could, and did, reasonably find were unreliable due to significant inconsistencies between the psychologists' accounts of the murder and information from other sources, including a post-sentence report done by the Department of Corrections in 1990.[4] Although petitioner's prison counselor, Dr. Newman, stated in his letter that petitioner "has constantly confessed guilt and taken total responsibility for the horrific consequences of his actions resulting in the death of his wife, " the board could reasonably find, based on evidence at the hearing including petitioner's testimony, that he had not, in fact, done so. The board could reasonably find that there were inaccuracies in the psychologists' reports based on petitioner's false statements, misrepresentations, and minimizations that the psychologists took at face value.

         The board could also reasonably find that petitioner had "failed to accept responsibility for the full range of his criminal behavior, including the uncontroverted history of domestic violence with" the victim, that petitioner lacked insight, and that petitioner had, "[t]o a substantial degree, * * * disassociated himself from the murder" and sees "the [287 Or. 715] spectrum of intimate partner violence that he perpetrated as separate from who he is." Those findings are supported by evidence in the record, in particular petitioner's testimony at the hearing, in which he failed to recognize that the murder was part of a pattern of domestic violence that he perpetrated against the victim. That pattern included previous assaults, death threats, and, after the victim had obtained a restraining order, a kidnapping that involved a firearm. Petitioner intimated that he does not or will not need domestic violence treatment unless he is in a future relationship.

         Next, petitioner challenges the board's findings under the eighth factor, involving whether he has "a mental or emotional disturbance, deficiency, condition or disorder predisposing [him] to the commission of a crime to a degree rendering [him] a danger to the health and safety of the community." OAR 255-032-0020(8). He contends that the board erred when it rejected the opinions of two psychologists and pointed to no affirmative evidence that petitioner has any such deficiency.[5] Although the psychologists gave reports generally favorable to petitioner, one of them, Dr. Colistro, testified at the hearing about petitioner's narcissism and pride and his need for continued treatment. Specifically, Dr. Colistro testified that petitioner is narcissistic and that, if petitioner were to be released, he would recommend counseling specifically focusing on his narcissism. He further testified about the link between petitioner's pride and his crime, noting that "if he had been a humble man on that night, we wouldn't be sitting here[.]" The board may rely on some aspects ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.