GUZEK v. BOARD OF PAROLE AND POST-PRISON SUPERVISION A132686.
191 P.3d 800 (2008)
222 Or. App. 81
Joel C. GUZEK, Petitioner, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.
Court of Appeals of Oregon.
Decided August 20, 2008.
Joel C. Guzek filed the brief pro se.
Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Karla H. Alderman, Assistant Attorney General, filed the brief for respondent.
Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and ORTEGA, Judge.
Petitioner was convicted of various offenses committed in 1985 and 1987, and he was sentenced as a dangerous offender to a maximum of 30 years' imprisonment. ORS 161.725; ORS 161.735. On January 11, 2005, the Board of Parole and Post-Prison Supervision conducted a parole consideration hearing under ORS 144.228, providing for such hearings for dangerous offenders.
We begin with petitioner's contention that the board's order is insufficient in form because of its lack of certain findings. ORS 144.335(3) provides, in part:
See also ORS 183.315(1) (providing that ORS 183.470, which sets out requirements for the form of administrative agency final orders in contested cases, does not apply to orders of the Board of Parole and Post-Prison Supervision).
Petitioner acknowledges that ORS 144.335(3) generally governs the form of the board's orders. He argues, however, that OAR 255-036-0005—the board's rule relating to parole release of persons sentenced as dangerous offenders for crimes committed before November 1, 1989—required the board to make findings regarding its inability to find the facts on which parole release of such offenders is predicated.
We agree with the board. Again, under ORS 144.335(3), the board's order was not required to be in any particular form, but was "sufficient for purposes of judicial review if it appears that the board acted within the scope of the board's authority." On its face, the board's order indicates that petitioner was sentenced as a dangerous offender, that the board held a parole consideration hearing, that the board received a psychological evaluation of petitioner, that the board found that the condition that made petitioner dangerous was not in remission, and that the board therefore was deferring his parole consideration date for 24 additional months. That was sufficient to show that the board was acting within the scope of its authority pertaining to parole consideration for dangerous offenders, as provided in ORS 144.228 and OAR 255-036-0005. The form of the board's order was sufficient for judicial review.
We turn to petitioner's challenge, again relying on ORS 144.228 and OAR 255-036-0005, to the substance of the board's decision. We review the substance of the
Again, we agree with the board. By its terms, the relevant statute and rule require the board to make specified findings to justify its establishment of a parole release date for a dangerous offender. The statute and rule do not require any findings when the board decides not to establish a release date.
We interpreted ORS 144.228 and OAR 255-036-0005 to the same effect in Colby v. Thompson, 183 Or.App. 311, 52 P.3d 1058 (2002). In that case, a dangerous offender who had been denied a parole release date sought habeas corpus relief. On appeal of the trial court's denial of his petition for a writ, he argued that the board had violated ORS 144.228 and OAR 255-036-0005—the same statute and rule at issue here—by failing affirmatively to find not only that he remained dangerous, but also that he could not be adequately controlled in the community with supervision and treatment. Colby, 183 Or.App. at 318, 52 P.3d 1058. We concluded that neither the statute nor the rule requires the board to make findings as to whether a dangerous offender can be adequately controlled in the community if the board decides not to establish a parole release date; rather, such findings are required only when the board decides to establish a parole release date. Id. at 320, 52 P.3d 1058. Nothing about the different context in which we analyze ORS 144.228 and OAR 255-036-0005 in this case requires a different result. The board's order was not legally deficient by reason of failing to make affirmative findings as to whether petitioner could be adequately controlled in the community with supervision and treatment.
We reject petitioner's constitutional challenges to the board's order without discussion.
- No Cases Found