RUFUS L. WASHINGTON, Petitioner,
BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.
and submitted June 7, 2018
of Parole and Post-Prison Supervision
A. Frikert, Deputy Public Defender, argued the cause for
petitioner. Also on the brief was Ernest Lannet, Chief
Defender, Criminal Appellate Section, Offce of Public Defense
Christopher A. Perdue, Assistant Attorney General, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General, and
Christopher Page, Assistant Attorney General.
Lagesen, Presiding Judge, and James, Judge, and Schuman,
Summary: Petitioner seeks judicial review of the Board of
Parole and Post-Prison Supervision's (the board) most
recent order deferring his release. The board deferred
petitioner's release after it determined that petitioner
suffers from a present severe emotional disturbance that
constitutes a danger to the health or safety of the
community. Petitioner contends that neither substantial
evidence nor substantial reason support the board's
decision. Specifically, petitioner argues that the
board's conclusion that his emotional disorder is severe
is not supported by substantial reason. Held: The
board's order failed to include a logical explanation of
the connection between adequately supported facts and the
board's conclusion that petitioner has a psychological
condition that is present, severe, and makes him a danger to
the health or safety of the community.
Or.App. 498] SCHUMAN, S. JUDGE
shot and killed a man in 1988 and was charged with aggravated
murder, murder, and robbery. Pursuant to an agreement, he
pleaded guilty to murder, all of the other charges were
dismissed, and he was sentenced to imprisonment for life with
the possibility of parole. At that time, the Board of Parole
and Post-Prison Supervision (board) set an initial proposed
release date of 2009, following the recommendation of the
sentencing court that petitioner serve a minimum of 20
years' incarceration. Since 2009, petitioner has appeared
before the board four times to apply for release, each time
without success. Petitioner now seeks judicial review of the
most recent order deferring his release, contending that
neither substantial evidence nor substantial reason support
the board's decision. We reverse and remand.
board's authority to defer an inmate's release
depends on the law in effect when the crime of conviction
occurred. Edwards v. Board of Parole, 272 Or.App.
183, 184 n 1, 355 P.3d 166, rev den, 358 Or. 70
(2015). The relevant law at the time of petitioner's
crime (May 29, 1988) was OAR 255-60-006, a 1988 version of
the board's administrative rule interpreting the
then-existing version of ORS 144.125(3). Peek v.
Thompson, 160 Or.App. 260, 262, 980 P.2d 178, rev
dismissed, 329 Or. 553 (1999). That rule provided:
"(7) The Board may order a psychiatric/psychological
report anytime prior to release. If the record indicates that
a psychiatric or psychological condition of severe emotional
disturbance, such as to constitute a danger to the health or
safety of the community, is present, the Board may consider
deferring parole release until a specified future date.
"(8) If the evaluation does not make a finding of severe
emotional disturbance such as to constitute a danger to the
health or safety of the community, the Board shall affirm the
parole release date and set parole conditions."
OAR 255-60-006 (1988). As construed, the rule encompassed
several requirements limiting the board's discretion.
First, the board had to obtain a psychiatric or psychological
evaluation of the inmate that included a diagnosis that [294
Or.App. 499] the inmate had a mental disorder.
Edwards, 272 Or.App. at 189; Peek, 160
Or.App. at 262. Second, the board had to independently
evaluate the material contained in the psychological
examination and reach its own legal (as opposed to medical)
determination that the inmate's disorder was "(a)
present, (b) severe, and (c) one that made the prisoner a
'danger to the health and safety of the community,
'" although the board did not need to use any
particular verbal formulation to express that conclusion.
Weidner v. Armenakis, 154 Or.App. 12, 17-18, 959
P.2d 623 (1998). Third, the board's independent
determination had to be based on only the psychiatric or
psychological evaluation and not on other information, for
example, the inmate's criminal history, parole plan,
institutional history, or exit interview. Peek, 160
Or.App. at 265-66.
board's order, in turn, is subject to judicial review for
substantial evidence and substantial reason. Jenkins v.
Board of Parole,356 Or. 186, 205, 335 P.3d 828 (2014);
Martin v. Board of Parole,327 Or. 147, 157, 957
P.2d 1210 (1998). "Substantial evidence exists to
support a finding of fact when the record, viewed as a whole,
would permit a reasonable person to make that finding."
ORS 183.482 (8)(c). In exercising substantial evidence
review, we may not reweigh or assess the credibility of the
evidence. Murphy v. Board of Parole, 241 Or.App.
177, 184, 250 P.3d 13, rev den,350 Or. 571 (2011).
The "substantial reason" standard requires the
board to provide an explanation connecting the adequately
supported facts to the inference it draws from them.
Jenkins, 356 Or at 196 (citing City of Roseburg
v. Roseburg City Firefighters,292 Or. 266, 271-72, 639
P.2d 90 (1981)). The ...