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Aikens v. Board of Parole & Post-Prison Supervision

Court of Appeals of Oregon

June 12, 2019

TIMOTHY LEE AIKENS, Petitioner,
v.
BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.

          Submitted October 10, 2017

          Board of Parole and Post-Prison Supervision

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and David O. Ferry, Deputy Public Defender, Offce of Public Defense Services, fled the brief for petitioner.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Christopher A. Perdue, Assistant Attorney General, fled the brief for respondent.

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

         Case Summary:

         Petitioner appeals from the Board of Parole and Post-Prison Supervision's final order declining to convert the terms of his confinement. Petitioner contends that the board's final order is not supported by substantial evidence or substantial reason and that the board thereby violated his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution.

         Held:

         The board's order was based in part on a finding that is not supported by substantial evidence. Specifically, there was no evidence in the record to support the board's finding that petitioner's good behavior in prison was "eerily similar" to the behavior that led to his involvement in a brutal murder. Because the Court of Appeals could not determine whether the board would have made its ultimate conclusion that petitioner failed to meet his burden of proving that he is capable of rehabilitation without that finding, the Court of Appeals remanded to the board to reconsider its decision without relying on that erroneous factual finding.

         Reversed and remanded.

         [298 Or.App. 15] EGAN, C. J.

         Petitioner is serving a life sentence for one count of aggravated murder. ORS 163.105 (1987).[1] In 2015, petitioner sought, for the third time, to convert the terms of his confinement to life imprisonment with the possibility of parole. After conducting a murder review hearing, the Board of Parole and Post-Prison Supervision (board) concluded that petitioner had failed to carry his burden of proving that he was likely to be rehabilitated in a reasonable period of time and, accordingly, declined to convert his aggravated murder sentence. ORS 163.105(2). Petitioner contends that the board's final order is not supported by substantial evidence or substantial reason and that the board thereby violated his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution. In our review under ORS 183.482(8)(c), we agree with petitioner that the board's order is based in part on a finding that is not supported by substantial evidence. Specifically, there is no evidence in the record to support the board's finding that petitioner's good behavior in prison was "eerily similar" to the behavior that led to his involvement in a brutal murder. We therefore remand for the board to reconsider its decision without relying on that erroneous factual finding.

         In 1987, petitioner, a man named Montez, and the victim went to a motel room in Portland. After the three used drugs, Montez attacked the victim, and petitioner helped to subdue her by punching her in the face. Montez raped and brutally sodomized the victim. After the rape, petitioner assisted Montez in binding and gagging the victim, dragging her into the bathroom, and strangling her to death. Then, the two moved the victim's body to the bed, piled her personal belongings and the room's furniture on top of her, and set everything on fire. Petitioner and Montez fled out of state, but petitioner was arrested two months later and eventually convicted of one count each of aggravated murder, first-degree arson, and abuse of a corpse. For the count of aggravated murder, the trial court sentenced petitioner [298 Or.App. 16] to life imprisonment with a 30-year minimum term without the possibility of parole.[2]

         In 2015, the board held a murder review hearing, at petitioner's request, regarding petitioner's aggravated murder sentence. The sole issue was whether petitioner was likely to be rehabilitated within a reasonable time. ORS 163.105(2).[3] The board considered each of the 10 factors in OAR 255-032-0020, the rule outlining criteria the board may use to determine whether a petitioner is likely to be rehabilitated. The board determined that some factors were neutral or weighed in petitioner's favor. However, the board concluded that several factors weighed so heavily against petitioner that he failed to carry his overall burden of proof. The board focused "in particular" on the factor in subsection (4) of OAR 255-032-0020: petitioner's "maturity, stability, demonstrated responsibility, and any apparent development in the inmate personality which may promote or hinder conformity ...


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