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Haynes v. Board of Parole & Post-Prison Supervision

Supreme Court of Oregon

October 5, 2017

MICHAEL R. HAYNES, Petitioner on Review,
v.
BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent on Review.

          Argued and Submitted May 12, 2017

         On review from the Court of Appeals (CA A162586). [*]

          Marc D. Brown, Chief Deputy Defender, Salem, argued the cause and fled the briefs for the petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender, Offce of Public Defense Services.

          Ryan Kahn, Assistant Attorney General, Salem, argued the cause and fled the brief for the respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General and Benjamin Gutman, Solicitor General.

          Before Balmer, Chief Justice, and Kistler, Walters, Landau, Nakamoto, Flynn, and Duncan, Justices. [**]

          [362 Or. 16] Case Summary: ORS 163.105 provides that a person convicted of aggravated murder and sentenced to life imprisonment without the possibility of parole may seek a determination by the Board of Parole and Post-Prison Supervision, after serving a minimum term, that he or she should have the terms of their confinement modified to allow for the possibility of parole. Petitioner sought such a determination from the board, but the board denied his request. Petitioner wished to seek judicial review of the board's decision, as provided in ORS 144.335, but his court-appointed lawyer did not file his petition for review within the timeline provided in that statute, and the Court of Appeals dismissed the petition. Petitioner sought review of the dismissal in the Supreme Court, arguing that the lawyer's failure to file a timely petition constituted a violation of his right to adequate counsel in the judicial review, the existence of which right he inferred from the fact that he was statutorily entitled to the assistance of counsel in the review proceeding. Citing State ex rel Juv. Dept v. Geist, 310 Or. 176, 796 P.2d 1193 (1990), and the Due Process Clause of the Fourteenth Amendment to the United States Constitution, petitioner argued that the appropriate and required remedy for that violation was reversal of the dismissal and allowance of a late judicial review process. Held: Assuming that petitioner has a statutory right to adequate counsel on review, the remedy he seeks - excusing the jurisdictional requirement of a timely petition for review - is not an appropriate remedy under state law, given the strict fling deadline that the legislature has set; neither does the Due Process Clause dictate a different result given the source of petitioner's right to counsel and the nature of the judicial review proceeding at issue.

         The order of dismissal of the Court of Appeals is affirmed.

         [362 Or. 17] FLYNN, J.

         Petitioner seeks judicial review of a final order of the Board of Parole and Post-Prison Supervision that denied his petition to change the terms of his life imprisonment to allow for the possibility of release. The Court of Appeals dismissed the case because petitioner's appointed counsel missed the deadline for filing a petition for judicial review in that court. We allowed review to consider whether petitioner, who is statutorily entitled to be assisted by counsel on review, should or must be allowed to proceed with his untimely petition for review when the late filing was entirely due to neglect by appointed counsel.

         Petitioner argues that his statutory right to counsel must be construed as a right to adequate counsel, that he was denied that statutory right when his counsel missed the filing deadline for judicial review, and that this court should address the statutory violation by excusing the untimely filing. Petitioner also contends that a denial of judicial review under these circumstances violates his right to due process under the Fourteenth Amendment of the United States Constitution and that this court must allow a delayed appeal to vindicate petitioner's due process rights.

         We conclude that petitioner is not entitled to the relief that he seeks. Jurisdiction for judicial review of a board order is a creation of statute, ORS 144.335, and that jurisdiction depends upon filing a petition for review within the time period provided in the statute. Even if petitioner is correct that he has a statutory right to adequate counsel on review which has been denied because of appellate counsel's late filing, he is not correct that the appropriate remedy is to excuse the jurisdictional requirement of a timely petition. We also conclude that the federal constitution does not dictate a different result, because the nature of the administrative judicial review process is such that state law is the only source of both petitioner's right to judicial review and his right to the assistance of counsel on review.

         I. FACTS AND PROCEDURAL BACKGROUND

         Petitioner is serving a sentence of life imprisonment without possibility of parole or release for a 1986 aggravated [362 Or. 18] murder. At petitioner's request, the board held a hearing to determine if petitioner "is likely to be rehabilitated within a reasonable period of time" and, if so, to change the terms of his confinement to "life imprisonment with the possibility of parole, or work release." See ORS 163.105 (1985).[1] The board found that petitioner failed to prove that he is likely to be rehabilitated within a reasonable time, petitioner sought administrative review, and the board issued a final order adhering to its decision.

         Upon learning that the board had issued its final order, petitioner contacted the Office of Public Defense Services (OPDS) to pursue judicial review on his behalf.[2]Although OPDS assured petitioner that it would file a petition for review, due to a calendaring error, the lawyer assigned to petitioner's case filed the petition six days after the statutory deadline. The Court of Appeals, on its own motion, dismissed review based on the untimely filing.

         Petitioner filed a motion for reconsideration in which he argued that the untimely filing should be excused, given that it was entirely the fault of appointed counsel. The Court of Appeals denied reconsideration, and this court allowed review.

         II. DISCUSSION

         Petitioner's arguments rest on the initial premise that his statutory right to the assistance of counsel to pursue judicial review of the board's order is a right to adequate assistance of counsel. To vindicate that right, petitioner argues, the court should allow additional time to file a petition for review when appointed counsel fails to timely file a petition. According to petitioner, the court has authorized similar relief to address inadequate representation in other [362 Or. 19] contexts and should do so in the "murder-review" context as well.[3] Petitioner also argues that he is entitled to that remedy as a matter of the due process guaranteed by the Fourteenth Amendment to the United States Constitution.[4]

         A. The Murder Review Statutory Framework

         As context for petitioner's arguments, we begin with a brief overview of the murder-review process. At the time petitioner committed his crime, ORS 163.105(1) (1985) provided that a person convicted of aggravated murder, if not sentenced to death, shall be sentenced to "life imprisonment" and ordered "confined for a minimum of 30 years without the possibility of parole, release on work release or any form of temporary leave or employment at a forest or work camp." After 20 years, however, the prisoner becomes eligible for a "murder-review" hearing, at which the board considers whether to change the terms of the prisoner's confinement to "life imprisonment with the possibility of parole or work release." ORS 163.105(2), (3) (1985).[5]

          [362 Or. 20] If, after such hearing, the board denies a prisoner's petition to change the terms of confinement, the prisoner has a right to seek judicial review of the board's order. ORS 144.335(1). One of the conditions for seeking judicial review is that the petition for review of the board's order "shall" be filed "within 60 days after the date the board mails the order." ORS 144.335(4). Finally, and at the core of petitioner's argument, "the Public Defense Services Commission shall provide for the representation of financially eligible persons petitioning for review" of the board's order. ORS 144.337(1).

         B. The Nature of the Right to Counsel on Review

         According to petitioner, that statutory right to representation by counsel "implicitly requires * * * the provision of adequate counsel." (Emphasis in original.) For that premise, petitioner relies primarily on State ex rel Juv. Dept. v. Geist, 310 Or. 176, 796 P.2d 1193 (1990), in which we held that the statutory right to counsel applicable in a termination of parental rights case is a right to "adequate" counsel. In Geist, the mother whose parental rights were at stake was provided counsel under a statute that guaranteed indigent parents in termination cases a right to "an attorney to represent them at state expense." Id. at 180 n 3. The court-appointed lawyer who represented the mother at the termination hearing had been recently removed from a list of lawyers who were qualified to represent clients in such proceedings, and the lawyer moved to withdraw. The court denied the lawyer's motion to withdraw and ultimately terminated the mother's parental rights.

         On appeal, the mother challenged the termination judgment on the ground that she had been denied adequate representation of counsel. The Court of Appeals "assumed that the legislature intended a statutory right to counsel to include a right to adequate counsel, " and this court expressly agreed with that premise. Id. at 185. We also concluded that, "[a]bsent an express legislative procedure for vindicating ...


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