Lehman v. Board of Parole

No. 427 June 26, 2024 417

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

JEREMY RYAN LEHMAN,

Petitioner,

v.

BOARD OF PAROLE AND POST-PRISON

SUPERVISION,

Respondent.

Board of Parole and Post-Prison Supervision

A176074

Submitted December 20, 2022.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and Morgen E. Daniels, Deputy Public Defender,

Office of Public Defense Services, filed the brief for petitioner.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Christopher Page, Assistant Attorney

General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Powers, Judge, and

Hellman, Judge.

HELLMAN, J.

Reversed and remanded.

Powers, J., dissenting.

418 Lehman v. Board of Parole

Cite as 333 Or App 417 (2024) 419

HELLMAN, J.

Petitioner seeks judicial review of an order of the

Board of Parole and Post-Prison Supervision (the board) that

denied his request to adjust his parole release date for aggra-

vated murder after the Department of Corrections (DOC)

calculated his “earned” date under ORS 421.121 and DOC

rules. The board concluded that it lacked authority to set

petitioner’s parole release date, which had already passed,

earlier than the date of his exit interview. Reviewing the

board’s order for legal error, Sohappy v. Board of Parole, 329

Or App 28, 35, 540 P3d 568 (2023) (citing ORS 183.482(8)(a)

and ORS 144.335(3)), we reverse and remand.

The relevant facts are mainly procedural and not

disputed. In 1994, at age 17, petitioner entered the victim’s

mobile home to steal marijuana and beat the victim to death

with a shovel as the victim lay asleep on the couch. A jury

convicted petitioner of aggravated murder, and the trial

court sentenced him pursuant to ORS 163.105 (1993) to life

in prison with a 30-year minimum term of incarceration.

In 2007, petitioner pleaded guilty to second-degree assault

in a separate case, and the trial court sentenced him to 70

months in prison and ordered that sentence to be served

consecutively to any previously imposed sentence.

In April 2019, the board held a murder-review hear-

ing and found that petitioner was likely to be rehabilitated

within a reasonable period of time. The board converted

petitioner’s sentence for aggravated murder to life with the

possibility of parole, set his prison term for 290 months, and

set his projected parole release date for October 6, 2019. In

August 2019, the board held an exit interview and affirmed

petitioner’s October 6, 2019, parole release date.

In March 2021—while he was still in custody serv-

ing his consecutive 70-month sentence—petitioner sought

a determination that he was eligible for a reduction in his

term of incarceration for aggravated murder under ORS

421.121 and DOC administrative rules. The effect of such

eligibility would mean that petitioner could have begun

serving his consecutive 70-month prison term earlier than

October 6, 2019. In April 2021, a DOC Offender Information

420 Lehman v. Board of Parole

and Sentence Computation analyst sent the board a memo-

randum that estimated petitioner’s “earned” date for aggra-

vated murder to be December 20, 2016. The board reviewed

petitioner’s file and issued the order at issue, in which it

concluded that it lacked authority to set a parole release

date for aggravated murder “prior to the date the of the

exit interview hearing.” However, the board “adjusted” the

“firm [parole] release date” it had established at petitioner’s

exit interview to the date of the exit interview. That is, the

board retroactively changed petitioner’s parole release date

to an earlier date in the past, but changed it to August 15,

2019 (the date of petitioner’s exit interview) rather than to

December 20, 2016 (DOC’s calculated “earned” date).

Petitioner sought administrative review. Petitioner

argued that the board has a legal duty under ORS 421.121

and applicable administrative rules to grant him earned-

time credit on his full 290-month term of incarceration; that

the board should have adjusted his parole release date to

December 20, 2016, the earned date calculated by DOC; and

that the board violated his right to due process by depriving

him of earned-time credit because ORS 421.121 created a

liberty interest in early release.

The board denied relief. It explained that its “posi-

tion is that you are not entitled to earned-time credit until

after the Board converted your projected release date to a

firm release date because the Board would not have released

you prior to getting an opportunity to conduct an exit inter-

view under ORS 144.125.” Relying on Janowski/Fleming v.

Board of Parole, 349 Or 432, 245 P3d 1270 (2010), the board

explained that it “was entitled to interview you and you were

not entitled to release until the exit interview occurred” and

that it therefore “properly adjusted * * * your release date to

August 15, 2019, which was the date of your exit interview.”

The board rejected petitioner’s due process argument with-

out discussion.

Petitioner timely seeks judicial review and renews

his contention that the board was required to give him

earned-time credit for the full term of his incarceration.

The board disagrees, contending that it correctly released

petitioner on parole on August 15, 2019, because it lacks

Cite as 333 Or App 417 (2024) 421

authority to release petitioner on parole for aggravated mur-

der before it has conducted an exit interview.

We begin with the statute governing earned time,

ORS 421.121 (1993),1 which provides, in relevant part:

“(1) Except as provided in ORS 137.635 [concern-

ing repeat offenders], each inmate sentenced to the cus-

tody of the department for felonies committed on or after

November 1, 1989, shall be eligible for a reduction in the

term of incarceration for appropriate institutional behav-

ior, as defined by rule of the Department of Corrections

* * *.”

In State ex rel Engweiler v. Cook, 340 Or 373, 133

P3d 904 (2006), the Supreme Court held that ORS 421.121

applies to an inmate serving a life sentence for aggravated

murder, but not until the board has defined the inmate’s

“term of incarceration” upon setting the parole release date.

In that case, the petitioner was serving a life sentence for

aggravated murder and sought a writ of mandamus to com-

pel DOC to grant him earned time under ORS 421.121. The

court explained that there was no dispute that the peti-

tioner was sentenced to the custody of DOC for a felony com-

mitted after November 1, 1989; that ORS 421.121(1) applies

to “each inmate” so sentenced, subject only to an exception

that did not apply; that “ORS 421.121 contains no explicit

exception for inmates convicted of any particular crimes,

including aggravated murder, for inmates not sentenced

under the sentencing guidelines, or for inmates sentenced to

life imprisonment;” and that “the phrase ‘each inmate * * *

shall be eligible for a reduction in the term of incarceration’

indicates that DOC’s duty to reduce the ‘term of incarcera-

tion’ is mandatory for each inmate who meets the criteria

for such reductions elsewhere described in ORS 421.121.” Id.

at 377-78 (emphasis omitted).

The court determined that the case turned on the

meaning of the phrase “term of incarceration” and con-

strued it to mean “the amount of time that an inmate must

spend in prison before the inmate is eligible for parole.” Id.

1

We apply the statutes and rules that were in effect at the time petitioner

committed his offenses. See Janowski, 349 Or at 436-37 (applying the statutes

and administrative rules in effect when the petitioners committed their crimes).

422 Lehman v. Board of Parole

at 378-80. However, the board had not yet determined the

“actual length of time that [the petitioner] was to be incar-

cerated” because it had not yet set his parole release date,

only a 480-month prison term after which he would be eligi-

ble for parole consideration. Id. at 383 (“If the board does set

petitioner’s parole release date, it will also have defined his

‘term of incarceration.’ ”). The court therefore concluded that,

because the petitioner was not yet serving a “term of incar-

ceration,” he was not eligible to receive earned time under

ORS 421.121. Id. at 383-84. The court later affirmed that its

construction of “term of incarceration” was not dictum, and

it adhered to it. Engweiler v. Persson/Dept. of Corrections,

354 Or 549, 558-61, 316 P3d 264 (2013).

Here, the board does not dispute that ORS 421.121

applies to petitioner or that, unlike in Engweiler v. Cook,

the board has already defined petitioner’s “term of incar-

ceration” when it set his parole release date. However, the

board argues, as it concluded below, that its authority to set

a parole release date for aggravated murder is limited by

statute and case law.

First, the board argues, and we agree, that ORS

163.105 (1993) controls the process by which it may release

petitioner on parole. See ORS 144.110(2)(b) (“The board

shall not release a prisoner on parole * * * [w]ho has been

convicted of murder defined as aggravated murder under

the provisions of ORS 163.095, except as provided in ORS

163.105.”); cf. Corgain v. Board of Parole, 213 Or App 407,

420-22, 162 P3d 990 (2007) (reaching that conclusion under

ORS 144.110 (1981) and holding that it applies to inmates

who will be released on parole to begin serving a consecu-

tive sentence). However, the board has already satisfied the

statutory prerequisites for releasing petitioner on parole,

including conducting an ORS 144.125 exit interview where

it found no reason to postpone petitioner’s scheduled parole

release date.

Second, the board asserts that under Janowski and

Engweiler v. Persson/DOC, it “must release [an inmate serv-

ing a life sentence] on a future scheduled release date after

engaging in the parole-consideration process.” The board

takes a slightly different position than it did below and

Cite as 333 Or App 417 (2024) 423

argues that “there is no authority for the board to release

petitioner,” or a similarly situated inmate serving a sentence

for aggravated murder, “on parole on a date in the past.”2

The board reads Janowski and Engweiler v.

Persson/DOC too broadly. In Janowski, the court concluded

that the petitioner was not entitled to immediate release,

even though he had already reached and passed his matrix-

based release date, because the board was still authorized to

conduct an exit interview and defer his parole release date

under ORS 144.125. 349 Or at 459. In Engweiler v. Persson/

DOC, the court likewise concluded that the petitioner was

not entitled to immediate release, “[e]ven though the appli-

cation of earned time credits appear[ed] to advance [the peti-

tioner’s] ‘initial release date’ to a date in the past” because

“the board cannot ‘schedule’ his physical release for a date

in the past.” 354 Or at 566 (emphasis added). The court rea-

soned that the petitioner’s “physical release necessarily will

be scheduled for a future date” before which “the board will

have the opportunity to conduct its prerelease interview.” Id.

(Emphasis added.)

Those cases stand for the proposition that the board

cannot schedule an inmate’s physical release date in the

past and that it may postpone an inmate’s parole release

date under ORS 144.125 until after it has the opportunity to

conduct an exit interview. But they are silent on whether the

board may retroactively adjust petitioner’s parole release

date to account for earned time under ORS 421.121. Here,

petitioner is not seeking immediate release (by virtue of a

past physical release date) but rather seeks administrative

adjustment of his parole release date to account for earned

time under ORS 421.121, which would allow him to begin

serving a consecutive guidelines sentence sooner. Under

those circumstances, Janowski and Engweiler v. Persson/

DOC do not limit the board’s authority to “schedule” peti-

tioner’s release date. The board erred when it concluded

otherwise.

2

Although not dispositive, we note the board’s argument on appeal is at odds

with what it did in petitioner’s case. In April 2021, the board set petitioner’s

parole release date in the past when it adjusted petitioner’s parole release date

from October 2019 to August 2019.

424 Lehman v. Board of Parole

The board has not pointed to any other source of

law, either below or on judicial review, that would constrain

its authority to administratively adjust petitioner’s release

date after the fact in accordance with ORS 421.121. In fact,

it appears to have believed that it had the authority to do

so when it adjusted petitioner’s release date to the date of

his (past) exit interview. Further, the board did not address

petitioner’s other arguments, including that he has a lib-

erty interest in earned time credit under the Due Process

Clause. We therefore reverse and remand the board’s order

for reconsideration and so the board may address petition-

er’s other arguments in the first instance.

Reversed and remanded.

POWERS, J., dissenting.

I respectfully dissent from the majority opinion’s

conclusion that petitioner’s release date for his aggravated

murder conviction could incorporate earned-time credit such

that his release date is before the exit interview held under

ORS 144.125. In my view, the majority opinion incorrectly

creates a distinction between petitioner’s physical release

date and what it calls an “administrative adjustment of his

parole release date” for purposes of an earned-time calcula-

tion and the start of a consecutive guidelines sentence. See

333 Or App at 423. I do not understand the applicable frame-

work to make such a distinction. Accordingly, I respectfully

dissent.

I begin with a brief overview of the release frame-

work for petitioner’s aggravated murder conviction.

Petitioner was convicted of aggravated murder based on an

incident in June 1994 and sentenced to life with the possi-

bility of parole after 30 years. In 2007, petitioner was con-

victed of second-degree assault for assaulting a corrections

officer and sentenced to a 70-month sentence to be served

consecutively to the aggravated murder sentence. As I

understand the applicable framework, petitioner’s aggra-

vated murder conviction carried three possible sentencing

options, one of which was life with the possibility of release

on parole after a mandatory minimum of 30 years. See ORS

163.105(1)(c) (1993). To be released on that charge, petitioner

Cite as 333 Or App 417 (2024) 425

had to serve at least 20 years before the Board of Parole

and Post-Prison Supervision held a murder-review hearing

under ORS 163.105(2) (1993). If the board determines that

petitioner is likely to be rehabilitated within a reasonable

period of time—which the board did in April 2019 in this

case—then the board would enter an order that has the

effect of converting the terms of petitioner’s sentence to life

with the possibility of parole. See ORS 163.105(3) (1993);

see also Janowski/Fleming v. Board of Parole, 349 Or 432,

453, 245 P3d 1270 (2010) (concluding that the legislature

intended that the board, after making the requisite deter-

mination following a murder-review hearing, set a release

date in accordance with the parole matrix in place at the

time of the offense).

Importantly, after scheduling a projected parole

release date using the matrix, the board had the option

to hold an exit interview under ORS 144.125 (1993)—as it

did in this case in August 2019—before petitioner would be

released on parole for the aggravated murder conviction.

Janowski/Fleming, 349 Or at 459 (explaining that ORS

144.125 allows the board to interview an adult in custody

to determine if any of the statutory grounds for postpone-

ment of a parole release date are present). Once petitioner

is released on parole for his aggravated murder conviction,

then the consecutive 70-month sentence would begin to run.

Despite agreeing that ORS 163.105 (1993) controls

the process by which petitioner is released on parole, 333

Or App at 422, the majority opinion then concludes that

the board can apply ORS 421.121 to adjust the release date

on petitioner’s aggravated murder charge to a date before

the board held the exit interview. In my view, no part of

the statutory framework—as layered and complicated as it

may be—supports that conclusion. The application of ORS

421.121 to petitioner’s aggravated murder conviction over

the release process in ORS 144.125 is, in my view, contrary

to the statutory framework. See Engweiler v. Persson/Dept.

of Corrections, 354 Or 549, 567, 316 P3d 264 (2013) (recogniz-

ing that the review process in ORS 144.125 “exists to ensure

that offenders are not released to parole unless and until

the board is satisfied that their release is consistent with

426 Lehman v. Board of Parole

community safety”); see also id. (explaining that the “leg-

islature expressly made the parole scheme and that review

process applicable to aggravated murder ‘regardless of the

date of the crime.’ Or Laws 1989, ch 790, § 28, compiled as a

note after ORS 144.110 (1989)”).

In my view, because the board correctly rejected

petitioner’s assertion that his release date for the aggra-

vated murder conviction may be set by application of ORS

421.121 to a date before it made a release determination

under ORS 144.125, I respectfully dissent.