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Putnam v. Board of Parole and Post-Prison Supervision

Court of Appeals of Oregon

February 22, 2018

GLEN ALAN PUTNAM, Petitioner,
v.
BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.

          Argued and submitted August 2, 2017

         Board of Parole and Post-Prison Supervision A161664

          Ryan O'Connor argued the cause for petitioner. With him on the briefs was O'Connor Weber LLC.

          Robert M. Wilsey, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         Petitioner petitions for judicial review of a decision by the Board of Parole and Post-Prison Supervision that set a 169-month post-prison supervision term. Petitioner assigns error to the board's calculation of that term, wherein the board did not subtract the time petitioner served on probation, prior to the revocation of that probation, from the term of post-prison supervision given to petitioner after his release from prison. Petitioner relies on former OAR 253-05-002(4) (Sept 1, 1989), arguing that a sentence of probation is subject to the statutory indeterminate maximum sentence under ORS 137.012. Petitioner argues that-notwithstanding the parenthetical in former OAR 253-05-002(4)- because probation is a sentence, a post-prison supervision term imposed as part of a revocation sentence must subtract time spent serving a probationary sentence. Held: The parenthetical in former OAR 253-05-002(4) is definitional, and confines the meaning of “sentence, ” as used in that rule, to prison incarceration and post-prison supervision, excluding time spent on probation prior to revocation.

          [290 Or.App. 437] JAMES, J.

         Petitioner petitions for judicial review of a decision by the Board of Parole and Post-Prison Supervision setting a 169-month post-prison supervision term. Petitioner assigns error to the board's time calculation, wherein the board did not subtract petitioner's time served on his probationary sentence, prior to his probation revocation sanction, from the post-prison supervision (PPS) term the board imposed upon petitioner's completion of his prison sentence. We affirm the board's order.

         The relevant facts are not disputed. When petitioner was sentenced in October 1995 for two counts of first-degree unlawful sexual penetration, ORS 163.411, petitioner's sentencing guideline gridblock was calculated as 10A, which provided for a presumptive sentence of imprisonment. Petitioner instead received a downward dispositional departure sentence of 20 years' probation.[1]The statutory maximum indeterminate sentence for petitioner's crimes of conviction is 20 years. ORS 161.605. In 2009, petitioner's probation was revoked and the court imposed a revocation sanction of 88 months in prison and 20 years PPS, "less credit for time served." In 2015, petitioner was released to PPS, and the board, in an Order of Supervision Conditions, set a 169-month PPS term, to expire in 2029. In its order, the board did not specify how it calculated the term, nor what authority it relied upon in reaching the calculation.

         Petitioner sought administrative review of his 169-month term of PPS following his release, arguing that the term was "unlawfully long." Specifically, petitioner argued that the 169-month PPS order was "in violation of the maximum statutory limit of 20 years." Petitioner, relying upon ORS 144.103(1), summarized his argument as a challenge to the "'Order of Supervision Conditions' interpretation of'less time served' to mean only that time that [petitioner] spent in prison thus denying the 162 months [petitioner] served towards [his original sentence] on probation." The board, in [290 Or.App. 438] its Administrative Review Response (ARR), responded, in relevant part:

"The Board concludes that your argument regarding the inclusion of your time spent on probation for purposes of calculating your 'term of imprisonment' pursuant to ORS 144.103 (1992) is incorrect."[2]

         The board denied petitioner relief. Petitioner then sought judicial review.

         On judicial review, petitioner argues that the time he served on probation should count towards the statutory maximum sentence and assigns error to the board imposing a 169-month term of PPS. However, on judicial review, petitioner identifies a different source of law for his contention, former ...


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