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Cohron v. Board of Parole and Post-Prison Supervision

Court of Appeals of Oregon

August 7, 2019

JIMMIE HOYT COHRON, Petitioner,
v.
BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.

          Argued and submitted September 7, 2018

          Board of Parole and Post-Prison Supervision

          Stephanie J. Hortsch, Deputy Public Defender, argued the cause for petitioner. Also on the briefs 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 were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         Petitioner seeks judicial review of a final order of the Board of Parole and Post-Prison Supervision in which the board reaffirmed its previous decision under ORS 144.120(4) (1985) not to set a parole release date for petitioner. The board contends that the Court of Appeals lacks jurisdiction to review the order because, in the board's view, the order merely declined to reopen and reconsider a prior order, and, alternatively, that petitioner's arguments are meritless. Held: The court had jurisdiction to review the board's order under ORS 144.335(1), which allows the court to review a "final order" of the board on the petition of a person who is "adversely affected or aggrieved" by the order. The board's order did more than deny reopening and reconsideration of an earlier final order; the board scheduled a hearing, considered new information, and ultimately made a current decision, based on that new information, that there was "no basis for a change in the terms of confinement (parole denial)" and, after reexamination, affirmed its previous decision. However, petitioner's arguments on the merits provided no grounds for reversing the board's decision.

         Affirmed.

         [298 Or.App. 748] LAGESEN, P. J.

         Petitioner seeks judicial review of a final order of the Board of Parole and Post-Prison Supervision in which the board reaffirmed its previous decision under ORS 144.120(4) (1985) not to set a parole release date for petitioner. The board contends that, under either Richards v. Board of Parole, 339 Or. 176, 118 P.3d 261 (2005), or Mastriano v. Board of Parole, 342 Or. 684, 159 P.3d 1151 (2007), we lack jurisdiction to review the order. Alternatively, the board contends that petitioner's arguments provide no grounds for displacing the board's order. We reject the board's jurisdictional arguments, but affirm the order on its merits.

         Petitioner is serving a life sentence for the murder that he committed in 1985. Upon his commitment to the Department of Corrections (DOC), the board considered whether to set a parole release date for petitioner but declined to do so under the authority of ORS 144.120(4) (1985). That provision specified that the board could decline to set a release date when the "offense included particularly violent or otherwise dangerous criminal conduct." Petitioner has asked the board to reconsider that decision several times and, in 2015, in response to one of petitioner's requests, the board took action. It scheduled an interview under OAR 255-030-0013 to assess petitioner's progress; the board ordered a psychological evaluation of petitioner to evaluate petitioner's current condition. After conducting that interview, the board adhered to its prior decision. It explained in Board Action Form 3:

"Based on all the information the Board is considering, and pursuant to [the relevant version of] ORS 144.120(4) ***, the Board finds no basis for a change in the terms of confinement (parole denial), and affirms the previous decision not to set a parole release date."

         Petitioner sought administrative review, raising a number of issues. The board rejected many of his arguments on the ground that they represented attacks on the board's original order, rather than challenges to the board's current decision not to change the terms of petitioner's confinement. The board rejected on the merits petitioner's assertions that [298 Or.App. 749] the board's current decision not to change the terms of petitioner's confinement lacked substantial evidence.

         On review, in three assignments of error, petitioner contends that the board erred in denying petitioner's request to change the terms of his confinement by providing him with a parole release date. He argues that the board failed to identify the correct standard or otherwise articulate what standard it was applying. He contends that the citation to ORS 144.120(4) (1985) indicates that the board applied the wrong standard and that ORS 144.050 supplied the correct standard. He argues that the board failed to adequately elaborate upon how it was ...


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