Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Contreras v. Board of Parole and Post-Prison Supervision

Court of Appeals of Oregon

May 15, 2019

ROBERTO CONTRERAS, Petitioner,
v.
BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.

          Argued and Submitted October 27, 2017

          Board of Parole and Post-Prison Supervision

          Zachary Lovett Mazer, 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.

          Keith L. Kutler, Assistant Attorney General, argued the cause for respondent. Also on the brief was Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary:

         Petitioner seeks judicial review of an order of the Board of Parole and Post-Prison Supervision that deferred his parole release date for eight years. He argues that the board's order lacks substantial reason to support the board's decision to set the deferral period at eight years.

         Held: The substantial reason requirement applies to the board's decision to set a "specified deferral period," OAR 255-062-0016, that is longer than two years and, because the board's order did not provide a sufficient explanation as to why the board chose a deferral period of eight years in this case, that order lacked substantial reason.

         [297 Or.App.470] ARMSTRONG, P. J.

         Petitioner seeks judicial review of an order of the Board of Parole and Post-Prison Supervision that deferred petitioner's parole release date for eight years. He argues that the board's order lacks substantial reason to support the board's decision to set the deferral period at eight years.[1] We conclude that the substantial reason requirement applies to the board's decision to set a "specified deferral period," OAR 255-062-0016, that is longer than two years and, because the board's order did not provide sufficient explanation why the board chose a deferral period of eight years in this case, that order lacks substantial reason. Accordingly, we reverse and remand for the board to further explain its reasoning.

         To provide context, we first review the board's authority to defer petitioner's parole release date. Under ORS144.125(3)(a), the board may defer a prisoner's parole release date for not less than two years, but not more than 10 years, if it finds that the prisoner has a "present severe emotional disturbance such as to constitute a danger to the health or safety of the community"[2] That provision also provides that "[t]he board shall determine the scheduled release date, and the prisoner may petition for interim review, in accordance with ORS 144.280." Under ORS 144.280, "[t]he board may not grant the prisoner a hearing that is more than [297 Or.App. 471] two years from the date parole is denied unless the board finds that it is not reasonable to expect that the prisoner would be granted parole before the date of the subsequent hearing." ORS 144.280(1)(b).[3] That statute also directs that "[t]he board shall determine the date of the subsequent hearing pursuant to rules adopted by the board." ORS 144.280(1)(c).

         The board has promulgated rules for determining "the date of the subsequent hearing." Under OAR 255-062-0006(3), if the board finds that it is "not reasonable to expect that the inmate would be granted a firm release date, following two years, the Board will deliberate and select a deferral date of between two and 10 years from the date of the decision, or from the date of the inmate's current projected parole release date or current parole consideration [297 Or.App. 472] date." The board is further directed by OAR 255-062-0016 to base its decision on one or more of the 14 nonexclusive factors set out in that rule.[4]

         With that background in mind, we turn to the facts in this case. Petitioner was convicted in 1987 for a murder that he committed in 1986 and was sentenced to life imprisonment with a minimum term of 25 years in prison. The board set an initial projected parole release date for petitioner, which was modified through parole reviews granting [297 Or.App. 473] good-time credit to May 29, 2008. In 2007, 2009, and 2011, following psychological examinations of petitioner, the board conducted exit interviews with petitioner. After each interview, the board concluded that petitioner suffered from a present severe emotional disturbance (PSED) that constitutes a danger to the health or safety of the community and deferred petitioner's projected parole release date. The 2011 board order deferred petitioner's projected parole release date to May 29, 2016.[5]

         In 2016, following a psychological examination and exit interview with petitioner, the board issued the order now under review (BAF #10). In BAF #10, the board again found that petitioner suffers from a PSED that constitutes a danger to the health or safety of the community. The board also found that "it is not reasonable to expect that the inmate will be granted a firm release date before 8 years from the current projected release date." The board stated that that finding was based on factors (4), (9), and (10) in OAR 255-062-0016 and that each of those factors was "an adequate and independent basis for our decision." The board then deferred petitioner's release date eight years and set a new projected parole release date of May 29, 2024.

         With regard to the OAR 255-062-0016 factors, the board found as follows:

"(4) Inmate's failure to demonstrate understanding of the factors that led to his/her criminal offense(s); [Petitioner] was unable or unwilling to discuss any personality characteristics that may have contributed to his participation in the torture and murder of [the victim]. Instead, he offered the Board an explanation that the victim was, in fact, a hired assassin who was going to kill him and acted in self-defense. When asked why the victim might be hired to kill him, he offered that he owed other drug dealers money, implying that the drug dealers wanted him dead because of his unpaid debts. Later, he told the Board that he participated in the murder because he was 'young [297 Or.App. 474] and made mistakes'. In his 2015 psychological evaluation, Dr. McGuffin noted, 'With limited insight about important dynamics in his personality, he is still prone to exhibit poor judgment'. The Board concurs with Dr. McGuffin's assessment and adds that [petitioner's] lack of insight is reflective of his unwillingness to examine the lifestyle and personality traits that resulted in his incarceration. Throughout the course of the hearing, [petitioner] was openly hostile toward the Board and the District Attorney for not recognizing what he believed to be his efforts at reformation. Rather than focus on understanding the Board's concerns, [petitioner] repeatedly accused the current Board and previous Boards of being negative and uninterested in what he believed to be his efforts at reformation.
"(9) Inmate's inability to experience or demonstrate remorse or empathy; By his allegations that [the victim] was a hired killer and minimizing his own involvement in the murder as acting in self-defense, [petitioner] diminished the life of [the victim] and placed himself in the role of a young and inexperienced youth who feared for his life. He told the Board that he was sorry for killing the victim, but this was presented without a hint of remorse and seemed disingenuous and practiced. At one point during the hearing when it was pointed out the victim had died from the injuries sustained, he stated that everyone had to die sometime. [Petitioner] appeared to be focused on the fact that he had served 30 years for the murder and the Board should parole him because the Board had paroled inmates who had murdered multiple victims. It appears that [petitioner] had quantified the value of life and focused on time served rather than efforts at reformation or understanding the effects of his behavior on the surviving victims and society in general.
"(10) Demonstrated poor planning and foresight; [petitioner's] plan for parole primarily involves his deportation to Mexico where he plans to work as an interpreter for visiting Americans or as an auto mechanic with bi-lingual skills. He dismissed the idea that he might have to return to his county of jurisdiction, and refused to accept that his return to Mexico and his anticipated success might not be as easy as he anticipates. [Petitioner] has no plan for parole within the United States, and repeatedly interrupted the Board when being questioned about the feasibility of his plan to live in Mexico."

         [297 Or.App. 475] Petitioner then sought administrative review of the board's order. As relevant here, petitioner challenged the board's decision to defer his release date by eight years as lacking substantial reason because the board did not explain why it chose eight years, instead of some other number of years between two and 10. The board issued a response (ARR #5) rejecting that challenge because the order "stated, in detail, on what grounds [the board] deferred [petitioner's] parole consideration date, and has further explained it in this administrative review." In response to a different challenge by petitioner, the board's response had reiterated that "the Board found three independent reasons to defer your projected parole release date; your failure to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.