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Mendacino v. Board of Parole and Post-Prison Supervision

Court of Appeals of Oregon

September 20, 2017

PHYLL MENDACINO, Petitioner,
v.
BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.

          Submitted May 31, 2016.

         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, Paul L. Smith, Deputy Solicitor General, and Jeff J. Payne, Assistant Attorney General, fled the brief for respondent.

          Before Tookey, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary: Petitioner, an inmate serving a life sentence for murder, seeks review of a 2013 final order issued by the Board of Parole and Post-Prison Supervision. In its order, the board postponed petitioner's parole release date for 10 years after finding that he suffered from a "present severe emotional disturbance such as to constitute a danger to the health and safety of the community, " ORS 144.125(3)(a), and that it was "not reasonable to expect that [petitioner] would be granted parole" before 2023, the new date set by the board, ORS 144.280(1)(b). On judicial review, petitioner raises two assignments of error. First, he argues that substantial evidence does not support the board's order, in part because the board relied upon hearsay. Second, he contends that, because the board acted pursuant to statutes enacted after he committed his crime of conviction, the board's decision to postpone his parole for 10 years violated the state and federal constitutional prohibitions against ex post facto laws. Held: The board did not err. First, the board's order is supported by substantial evidence in the record, and the board sufficiently explained the connection between the facts of the case and the result reached. Second, the newly enacted and amended statutes are not unconstitutional ex post facto laws, either on their face or as applied to petitioner. The changes to the parole laws neither expand the substantive bases for deferral of parole nor extend the potential period of incarceration.

         [287 Or. 823]

          DEHOOG, J.

         Petitioner, an inmate serving a life sentence for murder, seeks review of a 2013 final order issued by the Board of Parole and Post-Prison Supervision (the board). In its order, the board postponed petitioner's parole release date for 10 years after finding that he suffered from a "present severe emotional disturbance such as to constitute a danger to the health or safety of the community, " ORS 144.125(3)(a), and that it was "not reasonable to expect that [petitioner] would be granted parole" before 2023, the new date set by the board, ORS 144.280(1)(b). Petitioner raises two assignments of error. First, he argues that substantial evidence does not support the board's order. Second, he contends that, because the board acted pursuant to statutes enacted after he committed his crime of conviction, the board's decision to postpone his parole for 10 years violated the state and federal constitutional prohibitions against ex post facto laws. We review the board's conclusions for legal error, as well as for substantial evidence and reason. See Morrison v. Board of Parole. 277 Or.App. 861, 863, 374 P.3d 948, rev den, 360 Or. 465 (2016); ORS 144.335(3) (providing that ORS 183.482(8) applies to parole board decisions). For the reasons discussed below, we conclude that the board did not err and, accordingly, affirm.

         BACKGROUND

         In 1980, petitioner was convicted for a murder committed on November 3, 1977.[1] He was sentenced to life in prison and, as required by ORS 144.120, [2] the board set an initial parole release date. In 1997, shortly before petitioner's scheduled release on parole, the board conducted an "exit interview" under ORS 144.125 to review whether petitioner was suitable for release.[3] The board found that petitioner suffered [287 Or. 824] from a present severe emotional disturbance (PSED) "such as to constitute a danger to the health or safety of the community." ORS 144.125(3)(a). As a result, the board postponed petitioner's parole for two years and scheduled a new exit interview for 1999. In 1999, the board again postponed petitioner's parole for two years, as it did following hearings held every two years thereafter until 2013, when the board postponed petitioner's parole for 10 years rather than two years.

         Petitioner's challenge arises from his 2013 exit interview. At that 2013 hearing, the board found, as it had at each of petitioner's previous parole review hearings, that he suffered from a PSED such as to constitute a danger to the health or safety of the community. In a "Board Action Form" (BAF), the board explained that, in making that finding, it was relying upon the reports of two psychologists who had examined petitioner:

"Based on the doctors' reports and diagnos[e]s, coupled with all the information that the Board is considering, the Board concludes that the inmate suffers from a present severe emotional disturbance that constitutes a danger to the health or safety of the community. The Board has considered this matter under the substantive standard in effect at the time of the commitment offense (s) and all other applicable rules and laws."

         Having once again found that petitioner suffered from a disqualifying PSED, the board deferred petitioner's parole, this time for 10 years, pursuant to ORS 144.125(3)(a), which provides, as to a parole deferral based on a PSED:

"The board may not postpone a prisoner's scheduled release date to a date that is less than two years, or more than 10 years, from the date of the hearing * * *. The board shall determine the scheduled release date, and the prisoner may petition for interim review, in accordance with ORS 144.280."[4]

         [287 Or. 825] The cross-referenced statute, ORS 144.280, limits the board's authority to postpone parole for more than two years to inmates for whom the board has found that "it is not reasonable to expect that the prisoner would be granted parole before the date of the subsequent hearing." ORS 144.280(1)(b). The board is required to "determine the date of the subsequent hearing pursuant to rules adopted by the board." ORS 144.280(1)(c). The applicable board rules include OAR 255-062-0016, which lists 14 "Factors to be Considered in Establishing a Deferral Period Longer Than Two Years."

         The BAF explained the board's finding "that it is not reasonable to expect that [petitioner] will be granted a firm release date before 10 years from the current projected release date." Specifically, that finding was

"based on, but not limited to the following factors in OAR 255-062-0016:
"(2) Infractions of institutional rules and discipline:
"The Board found inmate had several disciplinary violations, with the most recent occurring in February 2012. The 2012 violation was concerning based on *** inappropriate comments to staff, but more concerning was inmate's lack of understanding as to why he was held accountable for his behavior. Inmate did not take accountability for his actions, and demonstrated a disregard of the institution rules as well as [dis]respect for the female officer to whom he showed [a] rape-themed 'joke.'
"(5) Inmate's demonstrated lack of effort to address criminal risk factors of psychological or emotional problems:
"The Board found inmate could not identify or adequately discuss psychological or emotional growth even though he has had the benefit of many years of programming. Inmate had made efforts to address alcoholism, but had not addressed other factors leading to criminality. Inmate maintained he was innocent not only of his crime of conviction, but of his disciplinary violations and previous crimes, and ...

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