King v. Board of Parole

716

Argued and submitted September 23, 2019, affirmed January 27, 2021

ROBERT HADEN KING,

Petitioner,

v.

BOARD OF PAROLE AND

POST-PRISON SUPERVISION,

Respondent.

Board of Parole and Post-Prison Supervision

A167392

482 P3d 110

This case is before the Court of Appeals for a second time. In the first case,

King v. Board of Parole, 283 Or App 689, 389 P3d 1171 (2017) (King I), petitioner

sought review of a final order of the Board of Parole and Post-Prison Supervision

from a murder-review hearing, arguing that the board’s order lacked substantial

evidence and substantial reason—only the former of which the court addressed.

On remand, the board upheld its initial order after reconsidering the facts in

light of King I. On review from that order, petitioner now argues that the board’s

order lacks substantial reason. Held: The board’s order on this record was sup-

ported by substantial reason. Although the order was not verbose, and although

there were facts that weighed in petitioner’s favor, the board provided substantial

reasoning for its order and therefore did not err in upholding it.

Affirmed.

Marc D. Brown, Deputy Public Defender, argued the

cause for petitioner. Also on the brief was Ernest G. Lannet,

Chief Defender, Criminal Appellate Section, Office of Public

Defense Services.

Jeff J. Payne, Assistant Attorney General, argued the

cause for respondent. Also on the brief were Ellen F. Rosenblum,

Attorney General, and Benjamin Gutman, Solicitor General.

Before Ortega, Presiding Judge, and Shorr, Judge, and

James, Judge.

JAMES, J.

Affirmed.

Cite as 308 Or App 716 (2021) 717

JAMES, J.

Petitioner seeks review of a final order of the Board

of Parole and Post-Prison Supervision from a murder-review

hearing, in which the board upheld its previous order after

a remand from this court. Petitioner argues that the board’s

order lacks substantial reason. We affirm.

In King v. Board of Parole, 283 Or App 689, 389 P3d

1171 (2017), we reversed a ruling in which the board denied

relief from a murder-review hearing. In that order, the board

found that petitioner had not satisfied his burden of prov-

ing, by a preponderance of evidence, that he is likely to be

rehabilitated within a reasonable period of time. The board

incorporated a 14-page “final order containing the findings

of fact and conclusions of law” which discussed seven fac-

tors that correlate to criteria listed in OAR 255-032-0020

that led the board to the conclusion that petitioner had not

satisfied his burden.1 Based on that reasoning, it declined

to convert petitioner’s life sentence without the possibility of

parole for aggravated murder to life with the possibility of

parole.

On review, petitioner contested a number of the fac-

tual findings relied on by the board to determine that he

had not demonstrated that he is capable of rehabilitation

within a reasonable period of time. Id. at 690. Petitioner con-

tended that those factual findings were not supported by

substantial evidence in the record and that the order was

not supported by substantial reason. Id. We agreed with

petitioner that substantial evidence did not support three of

the factual findings on which the board relied in reaching

its ultimate determination regarding petitioner’s capacity

1

The board stated that its reasoning was based on: petitioner’s “involvement

in correctional treatment, medical care, educational, vocational or other train-

ing in the institution which will substantially enhance his/her capacity to lead

a law-abiding life when released,” corresponding to OAR 255-032-0020(1); his

“institutional disciplinary conduct,” corresponding to OAR 255-032-0020(3); his

“maturity, stability, demonstrated responsibility, and any apparent development

in [his] personality which may promote or hinder conformity to law,” correspond-

ing to OAR 255-032-0020(4); his “prior criminal history, including the nature

and circumstances of previous offenses,” corresponding to OAR 255-032-0020(6);

whether there is “a reasonable probability that [he] will remain in the community

without violating the law,” and “substantial likelihood that [he] will conform to

the conditions of parole,” corresponding with OAR 255-032-0020(10).

718 King v. Board of Parole

for rehabilitation, though we rejected petitioner’s remain-

ing challenges to the board’s factual findings. Id. at 692. We

noted that the board’s order did not disclose whether it would

have reached the same determination had it not relied on

the erroneous factual findings. Id. at 694. Because of that,

we remanded to the board to reconsider its decision without

relying on the erroneous factual findings. Id. Consequently,

we did not reach petitioner’s substantial reason argument.

Id.

On remand, the board excised the three factual

findings we deemed unsupported by substantial evidence

and again reached the same determination. It stated that

the remaining findings, considered under the criteria in

OAR 255-032-0020(1), (3), (4), (6), and (10), sufficed to estab-

lish that petitioner was not likely to be rehabilitated in a

reasonable period of time. The board found once more that

“it properly reviewed and weighed all evidence presented at

the murder review hearing, adequately anchored its conclu-

sions in its final order to the evidence presented, and that

its decision was based on substantial evidence.” In denying

petitioner relief for a second time and adhering to its final

order “without further discussion,” the board noted only

that, from its second review of the remaining allegations,

it had determined that petitioner’s arguments were “not

supported by the factual record, not sufficiently developed

or explained, without merit in light of the record and the

board’s findings of fact and conclusions of law, or meritless

due to some combination of these factors.”

Petitioner now seeks judicial review of that final

board order. He has filed the same opening brief that he

filed when this case was on review the first time, deleting

his arguments as to the findings that this court determined

were not supported by substantial evidence, but resur-

recting his challenges to the remaining factual findings.

Petitioner acknowledges that we rejected his challenges to

the board’s findings in our previous opinion, but states that

he raises the same arguments again because we did not pre-

viously reach his substantial reason argument, and also to

preserve the arguments for further state and federal appel-

late review. He argues: (1) that the board’s order is not sup-

ported by substantial evidence because, in petitioner’s view,

Cite as 308 Or App 716 (2021) 719

the record compels a conclusion that petitioner is likely to

be rehabilitated within a reasonable time; and (2) that sub-

stantial reason does not support the board’s order because,

according to petitioner, the board inexplicably rejected the

evidence that “overwhelmingly” weighed in his favor.

As the board correctly points out, the law of the case

doctrine controls the resolution of petitioner’s substantial

evidence arguments. We have long recognized that, once a

decision or ruling has been made in a particular case by an

appellate court, “while it may be overruled in other cases, it

is binding and conclusive both upon the inferior court in any

further steps or proceedings in the same litigation and upon

the appellate court itself in any subsequent appeal or other

proceeding for review.” Simmons v. Wash. F.N. Ins. Co., 140

Or 164, 166, 13 P2d 366 (1932). This is a doctrine of judicial

economy and discretion that aims to “preclude parties from

revisiting issues that already have been fully considered by

an appellate court in the same proceeding.” Hayes Oyster

Co. v. Dulcich, 199 Or App 43, 54, 110 P3d 615 (2005). As

petitioner accedes, his challenges before us on this second

judicial review are verbatim arguments raised in the first

review, less the challenges to the findings which we previ-

ously held were not supported by substantial evidence. As

we expressly rejected petitioner’s substantial evidence chal-

lenges to those findings in his first appeal, that decision

remains controlling.

Turning now to petitioner’s substantial reason argu-

ment, which we did not decide in our prior opinion, we deter-

mine whether the board’s order “articulates the reasoning

that leads from the facts found to the conclusions drawn.”

Dixon v. Board of Parole and Post-Prison Supervision, 257

Or App 273, 286, 306 P3d 715 (2013) (quoting Salosha, Inc.

v. Lane County, 201 Or App 138, 143, 117 P3d 1047 (2005). In

other words, we review the board’s order to see if it demon-

strates “some kind of an explanation connecting the facts

of the case (which would include the facts found, if any) and

the result reached * * *.” Martin v. Board of Parole, 327 Or

147, 157, 957 P2d 1210 (1998). If the board’s reasoning is

not obvious, its order—which includes both the Board Action

Form and the Administrative Review Response—must at

least set forth the bases for its inferences. See Mendacino v.

720 King v. Board of Parole

Board of Parole, 287 Or App 822, 837, 404 P3d 1048 (2017).

The board’s explanation “need not be complex, but it should

be sufficient to demonstrate the existence of a rational basis

and to allow for judicial review.” City of Roseburg v. Roseburg

City Firefighters, 292 Or 266, 272, 639 P2d 90 (1981). In con-

trast, when the board states mere conclusions, without ade-

quate explanation for judicial review, we have found sub-

stantial reason to be lacking. See, e.g., Castro v. Board of

Parole, 232 Or App 75, 85, 220 P3d 772 (2009).

OAR 255-032-0020 lists 10 factors that the board

may assess in determining whether an inmate is likely to be

rehabilitated in a reasonable time,2 although “the board is

not required to rely on all of the criteria set out in OAR 255-

032-0020 to support its ultimate conclusion * * *.” Dixon, 257

Or App at 281 n 4.

In Dixon, we observed that the board identified the

particular facts and the particular criteria on which it relied

Those factors include:

2

“(1) The inmate’s involvement in correctional treatment, medical care,

educational, vocational or other training in the institution which will sub-

stantially enhance his/her capacity to lead a law-abiding life when released;

“(2) The inmate’s institutional employment history;

“(3) The inmate’s institutional disciplinary conduct;

“(4) The inmate’s maturity, stability, demonstrated responsibility, and

any apparent development in the inmate personality which may promote or

hinder conformity to law;

“(5) The inmate’s past use of narcotics or other dangerous drugs, or past

habitual and excessive use of alcoholic liquor;

“(6) The inmate’s prior criminal history, including the nature and cir-

cumstances of previous offenses;

“(7) The inmate’s conduct during any previous period of probation or

parole;

“(8) The inmate does/does not have a mental or emotional disturbance,

deficiency, condition or disorder predisposing them to the commission of a

crime to a degree rendering them a danger to the health and safety of the

community;

“(9) The adequacy of the inmate’s parole plan including community sup-

port from family, friends, treatment providers, and others in the community;

type of residence, neighborhood or community in which the inmate plans to

live;

“(10) There is a reasonable probability that the inmate will remain in the

community without violating the law, and there is substantial likelihood that

the inmate will conform to the conditions of parole.”

OAR 255-032-0020.

Cite as 308 Or App 716 (2021) 721

for each of its findings and in support of its ultimate conclu-

sion that petitioner did not meet his burden. Id. at 287. There,

the board relied only on four of the 10 factors, which we held

sufficient to find substantial reason. Id. at 282. Similarly,

in Wille v. Board of Parole, we concluded that the board’s

reliance on four factors, taken together and supported by

substantial evidence, supported the board’s ultimate conclu-

sion. 287 Or App 709, 717-18, 404 P3d 1042 (2017), rev den,

362 Or 795 (2018). Finally, in Rivas-Valles v. Board of Parole,

a case in which the board articulated only five of the 10 fac-

tors, we found substantial reason because the board order

identified facts in the record supporting the determinations

with respect to each of the factors and “explained how those

determinations permitted the conclusion that petitioner was

not capable of rehabilitation in a reasonable period of time.”

275 Or App 761, 769, 365 P3d 674 (2015), rev den, 359 Or 777

(2016). There, importantly, we noted that the “[p]etitioner’s

disagreement with the board’s reasoning does not prove that

the reasoning was not explicit.” Id.

Here, we look for substantial reason in the board’s

initial order and the order on remand, which include various

Board Action Forms and Administrative Review Responses.

See Mendacino, 287 Or App at 837. After we remanded to the

board with instruction to reconsider its decision based only

on the factors that we found were supported by substantial

evidence, the board determined that substantial evidence

still sufficed to establish that petitioner is not likely to be

rehabilitated in a reasonable period of time, under the cri-

teria in OAR 255-032-0020(1), (3), (4), (6), and (10). For four

out of five of these criteria, the board’s orders provided an

explanation for why they weigh against the petitioner and

support its ultimate conclusion.

Beginning with OAR 255-032-0020(1), the board

pointed to a number of details about petitioner’s involve-

ment in programs in the institution, such as his inability to

identify concrete skills that he had learned during his treat-

ments, and found it of “particular significance that [peti-

tioner] was unable to identify any way in which he believes

he needs to change.” The board used this to support its con-

clusion that his “participation in programming has been pro

forma and that he has not invested himself in change.”

722 King v. Board of Parole

Looking to OAR 255-032-0020(3), the board con-

sidered petitioner’s disciplinary record, noting how peti-

tioner minimized a 2009 rule violation, which the board

found “unconvincing,” and that petitioner “continues to have

problems with impulsivity and poor problem-solving.” The

board’s language also at least implicitly weighs positive

factors cited by petitioner against those that weigh against

him.

Assessing OAR 255-032-0020(4), the board stated

that its reasoning was based on the fact that petitioner “dis-

played evidence of continued criminal thinking errors, includ-

ing: justifying, blaming, excuse-making, issue-avoidance,

victim stance, minimizing, close-mindedness and self-

righteousness, [and] power and control issues * * *.” The

board acknowledged “the service [petitioner] has provided

through his informant activities,” but explicitly reasoned

that a number of outlined facts, such as petitioner’s con-

duct at his hearing, weighed against him and led the board

to infer that he “is still involved in an adventure-seeking,

risk-taking lifestyle,” as he had been when he murdered his

victim.

Considering OAR 255-032-0020(6), the board ana-

lyzed petitioner’s prior criminal history, including “the

nature and circumstances of previous offenses.” After list-

ing facts of various prior crimes, the board reasoned that

it was “not persuaded that these criminal acts were some-

how isolated and time-limited, and that offender is now a

different person.” It found that his “behavior in committing

these crimes was purposeful and antisocial” and not prop-

erly ascribed to his 1979 head injury, as he claimed.

While the board’s articulation of its reasoning with

respect to the above factors is not verbose, we cannot say it

is insufficient to establish substantial reason. As we have

observed, “although a more complete explanation of how the

board resolved conflicts in the evidence might aid our review,

the legislature has chosen to exempt the board from any

requirement to provide such an explanation.” Mendacino,

287 Or App at 839.

The board’s treatment of the above four factors dif-

fers from its discussion of OAR 255-032-0020(10). For that

Cite as 308 Or App 716 (2021) 723

criterion, the board states a mere conclusion, which this

court has found insufficient to contribute to substantial rea-

son. See Castro, 232 Or App at 85 (citing ORS 183.315(1)). For

this criteria, the board does nothing more than state that it

“concludes that there is no reasonable probability that [peti-

tioner] will remain in the community without violating the

law and there is no substantial likelihood that [petitioner]

will conform to the conditions of parole,” pointing to no facts

and doing nothing more than restating the language of the

rule.

However, as discussed, the board need not consider

every, or even most, of the criteria listed in OAR 255-032-

0020. Here, four out of the 10 nonexclusive criteria of the

rule are sufficiently supported by substantial reason in the

language of the board’s order. For these four criteria, the

order identifies both “the particular facts and the particu-

lar criteria on which [the board] relied in support of its con-

clusion that petitioner did not meet his burden of proving

that he was capable of being rehabilitated.” Dixon, 257 Or

App at 287-88. Although there was certainly evidence that

the board itself concedes weigh in favor of petitioner and

which petitioner pointed out at the review hearing, we do

not consider this to be a case in which the evidence weighs

overwhelmingly in petitioner’s favor. Cf. Castro, 232 Or App

at 84 (substantial reason does not exist when the credible

evidence apparently weighs overwhelmingly in favor of one

finding and the board makes another finding without pro-

viding an explanation). In sum, the board’s order in this case

is supported by substantial reason in addition to substantial

evidence.

Affirmed.