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Washington v. Board of Parole and Post-Prison Supervision

Court of Appeals of Oregon

October 17, 2018

RUFUS L. WASHINGTON, Petitioner,
v.
BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.

          Argued and submitted June 7, 2018

          Board of Parole and Post-Prison Supervision

          Laura 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 Services.

          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.

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

         Case 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.

         Reversed and remanded.

         [294 Or.App. 498] SCHUMAN, S. JUDGE

         Petitioner 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.

         The 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.[1]

         The 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 ...


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