The opinion
352
Submitted August 29, 2018, petition for judicial review dismissed as moot
February 10, 2021
BARRY JAMES DUVIGNEAUD,
Petitioner,
v.
BOARD OF PAROLE AND
POST-PRISON SUPERVISION,
Respondent.
Board of Parole and Post-Prison Supervision
A163633
482 P3d 777
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Shawn Wiley, Deputy Public Defender, Office
of Public Defense Services, filed the opening brief for
petitioner. Barry J. Duvigneaud filed the supplemental brief
pro se.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Denise G. Fjordbeck, Assistant
Attorney General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Kistler, Senior Judge.
PER CURIAM
Petition for judicial review dismissed as moot.
Cite as 309 Or App 352 (2021) 353
PER CURIAM
In 1988, petitioner was convicted of aggravated
murder and sentenced to life imprisonment with a 30-year
minimum sentence without the possibility of parole. On
judicial review, petitioner argues that a 2016 order issued by
the Board of Parole and Post-Prison Supervision (the board)
incorrectly concluded that he is not likely to be rehabilitated
within a reasonable period of time. We dismiss the petition
for judicial review as moot.
After petitioner had served 20 years of his sen-
tence, he asked the board to find that he is “likely to be
rehabilitated within a reasonable period of time.” See ORS
163.105(2) (1985). That finding, if made, would have two
effects. It would allow the board to override petitioner’s
30-year minimum sentence, and it would convert his life
sentence without the possibility of parole into a life sentence
with the possibility of parole. Janowski/Fleming v. Board of
Parole, 349 Or 432, 441, 446, 245 P3d 1270 (2010). Petitioner
asked the board to make that finding five times. The board
declined to make it in 2009, 2012, 2014, and 2016 but made
it in 2018.
This petition for judicial review challenges the
board’s 2016 order. Petitioner argues that the board’s 2016
order finding that he is not likely to be rehabilitated in a rea-
sonable period of time is not based on substantial evidence
and lacks substantial reason. However, on July 18, 2018, the
board issued an order after a separate hearing, finding that
petitioner is likely to be rehabilitated in a reasonable period
of time. It accordingly scheduled a prison term hearing for
December 2018 and an exit interview for May 2019. As part
of the exit interview, a psychologist diagnosed petitioner as
having a personality disorder. Based on that diagnosis and
petitioner’s exit interview, the board issued a separate 2019
order deferring his release date after finding that he suffers
from a present severe emotional disorder.1
The only issue in this case is whether the board’s
2016 order incorrectly found that he is not likely to be reha-
bilitated in a reasonable time. However, even if the board
1
We take judicial notice of the board’s 2018 and 2019 orders.
354 Duvigneaud v. Board of Parole
erred in 2016, it determined in 2018 that petitioner is likely
to be rehabilitated in a reasonable time. The board’s 2018
order gave petitioner all that he argues its 2016 order should
have given him. And, even if we were to direct the board to
reverse its 2016 order, our decision would simply require the
board to move petitioner to the next steps in the process (the
prison term hearing and exit interview) that the board has
already conducted based on its 2018 order finding petitioner
likely to be rehabilitated in a reasonable time. Resolution of
the issues that petitioner raises in this petition for judicial
review will have no practical effect on his rights, rendering
the petition moot. See Brumnett v. PSRB, 315 Or 402, 406,
848 P2d 1194 (1993).
We express no opinion on petitioner’s pending chal-
lenge to the board’s 2019 order that he has a present severe
emotional disorder. We hold only that his challenge to the
board’s 2016 order that he is not likely to be rehabilitated in
a reasonable time is moot.
Petition for judicial review dismissed as moot.