CONRAD R. ENGWEILER, Petitioner,
BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.
and submitted January 29, 2018
of Parole and Post-Prison Supervision
Simrin argued the cause for petitioner. With him on the
briefs was Andy Simrin PC.
J. Payne, Assistant Attorney General, argued the cause for
respondent. With him on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Ortega, Presiding Judge, and Garrett, Judge, and Aoyagi,
Summary: Petitioner challenges an order of the Board of
Parole and Post-Prison Supervision, assigning error to the
board's decision to release him to parole rather than
post-prison supervision (PPS). He argues that the board
should have released him to PPS because his crime of
aggravated murder occurred after the felony sentencing
guidelines became effective and because he was sentenced to a
lifetime PPS term. Held: The Supreme Court has
explicitly stated that petitioner's entitlement to
eventual release, if any, would be to parole. Accordingly,
the board did not err in deciding to release him to parole.
Or. 336] ORTEGA, P. J.
challenges an order of the Board of Parole and Post-Prison
Supervision, assigning error to the board's decision to
release him to parole rather than post-prison supervision
(PPS). He argues that, because the aggravated murder that is
the subject of his conviction occurred after the felony
sentencing guidelines became effective, and because he was
sentenced to a lifetime PPS term, the board erred by
"modifying" the supervision term to parole upon his
release from prison. We conclude that the Supreme Court has
made clear that petitioner's release was to be to parole,
not PPS. Accordingly, we affirm.
procedural background in this case is long and complicated,
but we do not need to recount it in detail to resolve this
appeal. For our purposes, the following facts are relevant.
Petitioner committed the crime of aggravated murder in 1990
when he was 15. His conviction was followed by over two
decades of litigation about his sentence, the appropriate
length of incarceration, and the appropriate process for his
eventual release. In particular, because of his age and the
sentencing laws at the time, he fell into a "small class
of inmates who continued to receive indeterminate
sentences" after the adoption of the sentencing
guidelines. State ex rel Engweiler v. Cook, 340 Or.
373, 381, 133 P.3d 904 (2006).
2011, the Supreme Court concluded that ORS 144.120(1)(a)
(1989) applied to juveniles convicted of aggravated murder
(like petitioner) and that it required the board to conduct
parole hearings for those individuals. State ex rel
Engweiler v. Felton, 350 Or. 592, 596, 260 P.3d 448
(2011). After that decision, the board set petitioner's
initial parole release date for February 2018. Petitioner
then sought habeas corpus relief from the Supreme Court,
asserting that when his "earned-time credits" were
added to his credit for time served, his new release date had
passed, so he was entitled to immediate release.
Engweiler v. Persson/Dept. of Corrections, 354 Or.
549, 554, 316 P.3d 264 (2013). In 2013, the Supreme Court
rejected petitioner's request for immediate release and
held that the board was authorized to "schedule"
petitioner's release for a future date after conducting a
prerelease hearing under ORS 144.125(1) (providing that [291
Or. 337] "[p]rior to the scheduled release of any
prisoner on parole * * * the [board] may * * * interview the
prisoner" to review the prisoner's suitability for
release). Id. at 567.
board held a prerelease hearing and issued a decision in
September 2014 that deferred parole for 45 days "to
develop an adequate release plan." The order provided
that "[a]t that time you will be released onto parole
for life." Petitioner administratively challenged that
decision, asserting that the board was required to release
him to PPS. The board reviewed petitioner's request and
concluded that its decision to release petitioner to parole
was lawful. In large part, the board concluded that the
Supreme Court's most recent decision had addressed the
issue and "ruled that you are to be released on parole,
not post-prison supervision." Petitioner seeks judicial
review of the board's decision, arguing that the board
erred by ordering him to be released on parole.
agree with the board that the Supreme Court's most recent
decision involving petitioner required the board to release
petitioner on parole, not PPS. In particular, in rejecting
petitioner's argument that he was not subject to an exit
interview by the board under ORS 144.125(1), the Supreme
"Plaintiff protests that the position of the petitioner
in Janowski [/Fleming v. Board of Parole, 349 Or.
432, 245 P.3d 1270 (2010)] was different in a key way: he
committed his crime in 1985, before the sentencing guidelines
were adopted and the parole system was replaced with
post-prison supervision as the post-incarceration part of a
defendant's sentence. Therefore, the petitioner in
Janowski was subject to the parole regime set out in
ORS 144.125. Plaintiff by contrast, committed his crime in
1990, after the sentencing guidelines were adopted. According
to plaintiff, the judgment in his case correctly stated that
his release, if any, would be to post-prison supervision.
And, he argues, no exit interview is required before release
to post-prison supervision. Plaintiff is mistaken.
"This court has repeatedly stated that plaintiffs
entitlement, if any, to eventual release will be ...