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Ferry v. Board of Parole and Post-Prison Supervision

Court of Appeals of Oregon

August 1, 2018

RICHARD FERRY, Petitioner,
v.
BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.

          Submitted October 6, 2017

          Board of Parole and Post-Prison Supervision

          Richard Ferry fled the briefs for petitioner pro se.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Nani Apo, Assistant Attorney General, fled the brief for respondent.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

         Case Summary:

         Petitioner seeks review of an order of the Board of Parole and Post-Prison Supervision, rejecting petitioner's challenges to two special conditions of post-prison supervision. Petitioner's first assignment of error pertains to Condition 10, which prohibits petitioner from having contact with persons less than 18 years of age, solely as it applies to his son. Petitioner's second assignment of error pertains to Condition 11, regarding contact with his victims' family members. Held: Petitioner's challenge to Condition 10 has become moot during the pendency of the appeal and therefore is not addressed. With respect to Condition 11, the board imposed that special condition on the basis that it was "required" to do so under ORS 144.102(4)(a). The condition is not required by that statute, so the board's order is predicated on a legal error. To the extent the board could have imposed the condition on a discretionary basis, it did not do so and did not conduct the necessary analysis to do so.

         Reversed and remanded.

          [293 Or.App. 217] AOYAGI, J.

         Petitioner seeks review of an order of the Board of Parole and Post-Prison Supervision in which the board rejected his challenges to two special conditions of post-prison supervision. Petitioner's first assignment of error pertains to Condition 10, regarding contact with persons less than 18 years of age. Petitioner's second assignment of error pertains to Condition 11, regarding contact with his victims' family members. For the reasons that follow, we conclude that the first assignment of error is moot. As to the second assignment of error, we conclude that the board erred in imposing a special condition on erroneous legal grounds and therefore reverse and remand.

         The board made no factual findings.[1] The relevant facts, however, are minimal and undisputed. Petitioner was convicted of four counts of sexual abuse in the first degree, ORS 163.427. The victims were two minor girls who are petitioner's nieces by marriage. As petitioner was nearing the end of his prison term, he received a board order of supervision conditions, which laid out the conditions that would apply to him after he was released from prison on post-prison supervision.

         Petitioner immediately wrote a letter to his post-prison supervision officer regarding portions of two conditions. Condition 10 includes, in relevant part, "[a] prohibition against contacting a person under 18 years of age without the prior written approval of the board, supervisory authority, or supervising officer." Petitioner objected to that condition solely as it pertained to his teenage son, who would be less than 18 years old at the time of petitioner's release, and explained why he wanted to be in contact with his son. Condition 11 states, in relevant part, that petitioner "shall have no contact direct or indirect" with his victims, S and C, "or their family, including direct, indirect, second or third party contact," "without prior written consent of the PO." Petitioner objected that, because S and C are his nieces by marriage and therefore members of his own [293 Or.App. 218] family, Condition 11 would prevent him from having contact with his own family. He requested clarification as to "how close, 'family wise,' am I allowed to have contact with since her family members are also mine."

         When he did not receive a satisfactory answer from his post-prison supervision officer, [2] petitioner filed a timely request for administrative review of the board's order of supervision conditions. Petitioner challenged Conditions 10 and 11 as exceeding the board's authority and violating his federal constitutional right of familial association. He asked that the board modify the conditions to allow him to have contact with his son and to allow him to have contact with his ...


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