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Nevins v. Board of Parole and Post-Prison Supervision

Court of Appeals of Oregon

July 18, 2018

BARRETT LEE NEVINS, Petitioner,
v.
BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.

          Argued and submitted June 7, 2018

          Board of Parole and Post-Prison Supervision A162997

          Anne Fujita Munsey, Deputy Public Defender, argued the cause for petitioner. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Jonathan N. Schildt, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Lagesen, Presiding Judge, and James, Judge, and Schuman, Senior Judge.

         Case Summary:

         Petitioner seeks review of a final order of the Board of Parole and Post-Prison Supervision in which the board, acting under ORS 144.228, deferred petitioner's parole consideration date for 24 months. Petitioner argues that, under Dam v. Board of Parole, 258 Or.App. 39, 309 P.3d 161 (2013), the board erred when it relied on a psychological evaluation that was based on materially incomplete information about petitioner's prior parole history. Held: The board erred. The record, viewed as a whole, would not permit a reasonable person to find that the evaluator was aware of petitioner's complete history. Further, under Dam, it is not permissible for the board to rely on a psychological evaluation that is based on an inaccurate understanding of an offender's history if the inaccuracies may have influenced the evaluator's ultimate conclusions about the offender. It cannot reasonably be inferred that the evaluator's incomplete understanding of petitioner's parole history had no effect on his professional assessment of petitioner's likelihood of success on parole-any assessment of how petitioner might perform outside of an institutional setting was material to the evaluation.

         Reversed and remanded for reconsideration.

          [292 Or. 849] LAGESEN, P. J.

         Petitioner committed a first-degree burglary in 1998 and, pursuant to ORS 161.725 and ORS 161.735, was sentenced as a dangerous offender. In this case, he seeks review of a final order of the Board of Parole and Post-Prison Supervision. In that order, the board, acting under ORS 144.228, [1] deferred petitioner's parole consideration date for a period of 24 months. On review, petitioner contends that, under our decision in Dam v. Board of Parole, 258 Or.App. 39, 309 P.3d 161 (2013), the board erred when it relied on a psychological evaluation that was based on materially incomplete information about petitioner's prior parole history. Reviewing for legal error and substantial evidence, ORS 144.335(3); ORS 183.482(8), we agree with petitioner and, therefore, reverse and remand the board's order.

         The facts pertinent to the question before us are largely procedural and not disputed. Before petitioner's parole consideration hearing, the board referred petitioner to Dr. Shellman, a psychologist, for an assessment of the risk petitioner would pose to the community if paroled. In the evaluation, Shellman recounted in detail petitioner's criminal history and his prior parole history, but that account omitted mention of petitioner's most recent period of parole, which lasted more than two years but ended after petitioner assaulted his girlfriend and relapsed into using methamphetamine. At the parole consideration hearing, petitioner pointed out to the board that Shellman's evaluation indicated that Shellman seemed to be "operating under the impression that I've been in prison since the last time he gave me an evaluation, that I was never released in 2008, and on parole for a [26]-month period afterwards." Board member Wu, who was leading the hearing, stated he could "see what you mean that he doesn't discuss your most recent date of release" but that he was not going to "make a change" to the evaluation "at this point." Following the hearing, the board deferred petitioner's parole consideration date for 24 [292 Or. 850] months, finding that petitioner had "a mental or emotional disturbance, deficiency, condition, or disorder predisposing [petitioner] to the commission of any crime to a degree rendering [petitioner] a danger to the health or safety of others."

         Petitioner sought administrative review of that decision. He argued, among other things, that the evidence did not support the board's finding that petitioner remained dangerous and that the board erred in relying on Shellman's evaluation, given that Shellman "was either oblivious to or simply failed to acknowledge [the] extensive span of time" during which petitioner was on parole between 2008 and 2010. In its administrative review response, the board relied heavily on Shellman's evaluation to address petitioner's contention that the evidence was not sufficient to support its finding that petitioner was dangerous. After noting the results of tests that Shellman had performed, the board explained:

"Dr. Shellman diagnosed you with Antisocial Personality Disorder and indicated that he could not in all good conscience consider [you] ready for parole. Dr. Shellman concluded that he believed you to still be a potential danger to the community if you were to be released, and considered your prognosis extremely guarded."

         The board did not address in detail petitioner's other contentions on administrative review, including his contention that Shellman's evaluation was not based on an accurate understanding of petitioner's parole history, stating only that the board had "reviewed your remaining allegations and concluded that they are not supported by the factual record, are not sufficiently developed or explained, are without merit, or some ...


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