Guzek v. Board of Parole

795

Argued and submitted February 2, affirmed May 10, 2023

JOEL C. GUZEK,

Petitioner,

v.

BOARD OF PAROLE AND

POST-PRISON SUPERVISION,

Respondent.

Board of Parole and Post-Prison Supervision

A176059

530 P3d 510

Petitioner was convicted of various crimes that he committed in 1986 and

1987, and he was sentenced as a dangerous offender under the then-current ver-

sion of ORS 161.725. He petitioned the Court of Appeals for review of the parole

board’s order denying his request for a release date and instead resetting the

matter for another parole consideration hearing. Petitioner argues that the deci-

sion was not supported by substantial evidence or reason, and that it resulted

from application of the wrong legal standard. Held: The board considered all the

information presented to it, including, among other things, a 36-page psycho-

logical evaluation and report. It identified mental health diagnoses, traits, and

symptoms; risk assessment scores; and other information that it deemed per-

tinent to the question before it. The board then explained why it could not, on

the record before it, find that the condition that made petitioner dangerous was

absent or in remission. In the absence of such a finding, the board was without

authority to set a release date. It did not err.

Affirmed.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and Peter G. Klym, Deputy Public Defender, Office

of Public Defense Services, filed the briefs for petitioner.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Jeff J. Payne, Assistant Attorney

General, filed the brief for respondent.

Before Shorr, Presiding Judge, and Mooney, Judge, and

Pagán, Judge.

MOONEY, J.

Affirmed.

796 Guzek v. Board of Parole

MOONEY, J.

Petitioner was convicted of various crimes that he

committed in 1986 and 1987. He was sentenced as a dan-

gerous offender under ORS 161.7251. Petitioner has had a

number of parole consideration hearings conducted by the

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

under ORS 144.228, but it is the most recent hearing and

the board’s decision to defer his parole consideration date

for thirty-six months that is before us on review. Petitioner

assigns error to the board’s denial of his “release,” arguing

that its decision is not supported by substantial evidence or

reason, and that it resulted from application of an incorrect

legal standard. Petitioner argues that the lack of sufficient

evidence and reason and the application of the wrong legal

standard resulted in an unfair hearing. We conclude, for the

following reasons, that the board did not err. We affirm.

We review a final order of the board for legal error,

substantial evidence, and substantial reason. Jenkins v.

Board of Parole, 356 Or 186, 205, 335 P3d 828 (2014). The

final order here consists collectively of Board Action Form

#14 (BAF) and Administrative Review Response #8 (ARR).

Id. at 206-07. The substantial reason requirement flows log-

ically from, and is necessarily a part of, the substantial evi-

dence standard, requiring the board to “connect the facts of

the case and the result reached.” Id. at 214; see also Castro v.

Board of Parole, 232 Or App 75, 83, 220 P3d 772 (2009). We

review for legal error whether the board’s final order violates

1

The versions of ORS 161.725 and ORS 161.735 that were applied by the

court at the time petitioner was sentenced as a dangerous offender were those

that were in effect when the crimes for which he was convicted actually occurred.

The version of ORS 144.228 that was applied by the board at the parole consid-

eration hearing was the version that was in effect when petitioner committed

the crimes for which he was sentenced as a dangerous offender. Those statutes

have since been amended. It is the 1985 version of those statutes that apply to

petitioner and all citations to those statutes in this opinion are to the statutes as

they existed in 1985. We list the statutes and their subsequent history, below:

ORS 161.725 (1985), amended by Or Laws 1989, ch 790, § 75; Or Laws 1993,

ch 334, § 5; Or Laws 2005, ch 463, §§ 9, 14; Or Laws 2007, ch 16, § 4;

ORS 161.735 (1985), amended by Or Laws 1987, ch 248, § 1; Or Laws 1999,

ch 163, § 9; Or Laws 2005, ch 463, §§ 10, 15; Or Laws 2007, ch 16, § 5;

ORS 144.228 (1985), amended by Or Laws 1989, ch 790, § 75; Or Laws 1993,

ch 334, § 5; Or Laws 2005, ch 463, §§ 9, 14; Or Laws 2007, ch 16, § 4.

Cite as 325 Or App 795 (2023) 797

petitioner’s due process rights. Noble v. Board of Parole, 327

Or 485, 498, 964 P2d 990 (1998).

Petitioner was convicted of crimes that fit into three

basic categories: (1) sexual offenses against his daughter,

including rape, sodomy, and incest; (2) first-degree man-

slaughter and various assault offenses related to a car crash

in which petitioner’s son was killed, and others were injured,

because petitioner had been driving while under the influ-

ence of alcohol (MVA); and (3) various property offenses.

He was sentenced as a dangerous offender under the then-

existing versions of ORS 161.7252 and ORS 161.7353 on the

sexual offense convictions and on a first-degree burglary

conviction. The sentences for the manslaughter and assault

convictions that arose from the MVA were imposed to run

consecutively to the dangerous offender sentences.

The board conducted parole consideration hearings

a number of times beginning in 2003, concluding each time

that the condition that made petitioner dangerous under

ORS 161.725 at the time of sentencing was not in remis-

sion, that he continued to be dangerous, and deferring con-

sideration of a release date to a future hearing. The board

held another parole consideration hearing in January 2021,

after which it again found that defendant continued to be

2

ORS 161.725(1) allows the court to sentence a defendant as a dangerous

offender after finding that:

“The defendant is being sentenced for a Class A felony, and * * * is suffering

from a severe personality disorder indicating a propensity toward crimes

that seriously endanger the life or safety of another.”

3

ORS 161.735 provides, as pertinent:

“(1) * * * if, in the opinion of the court, there is reason to believe that

the defendant falls within ORS 161.725, the court shall order a presentence

investigation and an examination by a psychiatrist or psychologist.

“* * * * *

“(3) * * * Each psychiatrist and psychologist appointed to examine defen-

dant under this section shall file with the court a written report of findings

and conclusions, including an evaluation of whether the defendant is suffer-

ing from a severe personality disorder indicating a propensity toward crimi-

nal activity.

“* * * * *

“(6) If, after considering the presentence report, the examination reports

and the evidence in the case or on the presentence hearing, the court finds

that the defendant comes within ORS 161.725, the court may sentence the

defendant as a dangerous offender.”

798 Guzek v. Board of Parole

dangerous and deferred consideration of a release date for

another three years. It is the January 2021 finding and the

related ruling that is now before us.

We begin with a discussion of the basic statutory

framework that applies to persons sentenced as dangerous

offenders. In particular, we review the statutory provisions

that apply to this case, which include those in effect at the

time when the crimes of conviction occurred. Washington v.

Board of Parole, 294 Or App 497, 498, 432 P3d 372 (2018);

Edwards v. Board of Parole, 272 Or App 183, 184 n 1, 355

P3d 166, rev den, 358 Or 70 (2015).4 The original court deci-

sion to sentence petitioner as a dangerous offender was

made for crimes that occurred in 1986, and as already

mentioned, that decision was therefore made according to

versions of ORS 161.725 and ORS 161.735 that have since

been amended. At that time, defendants who qualified as

dangerous offenders were subject to enhanced sentences

when extended prison time was needed to protect the public

“because of the dangerousness of the defendant,” and when

at least one specific statutory ground existed including, as

relevant here, when “the defendant is being sentenced for a

Class A felony, and * * * is suffering from a severe personal-

ity disorder indicating a propensity toward crimes that seri-

ously endanger the life or safety of another.” ORS 161.725(1).

Whether a defendant qualified as a dangerous offender was

determined by the sentencing court after a presentence

investigation and psychiatric evaluation had been conducted.

ORS 161.735.

4

We reject petitioner’s contention that the board should have applied the

current version of ORS 144.228. Petitioner relies on direct criminal appeals cases

that do not overrule longstanding case law holding that, in this agency setting,

the board applies the statute or rule in effect at the time the inmate committed

the crimes at issue.

To the extent that petitioner argues that the board violated his ex post facto

rights, the record does not support such an argument. To establish an ex post

facto violation, petitioner must show that the board applied the amended statute

retroactively and, as a result of that retroactive application, created the risk that

his punishment would increase. Cal. Dept. of Corrs. v. Morales, 514 US 499, 509,

115 S Ct 1597, 131 L Ed 2d 588 (1995). But the board applied the statute as it

existed at the time petitioner committed his crimes, and expressly stated that

even if it were to apply the later-enacted version of ORS 144.228, it would reach

the same result. Petitioner, thus, failed to establish retroactive application of the

statute.

Cite as 325 Or App 795 (2023) 799

Ultimately, the sentencing court’s task was to decide

for itself whether a defendant suffered from a severe person-

ality disorder that predisposed them to criminal activity,

because “the essence of the dangerous offender classifica-

tion is not one specific diagnosis, but any significant mental

or emotional disorder or disturbance—a lay concept[.] * * *

[T]he finding should be based on the judge’s evaluation of

all the information gathered, not exclusively on the clinical

diagnosis.” State v Huntley, 302 Or 418, 430, 730 P2d 1234

(1986) (emphasis added). The sentencing court could, and

still may, impose up to a 30-year indeterminate sentence if

it found that a defendant so qualified. ORS 161.725.

During the first six months of a prisoner’s commit-

ment to a Department of Corrections (DOC) facility, the

board schedules either an initial release date or, in the case

of a dangerous offender, a parole consideration hearing.

ORS 144.228(1)(a). ORS 144.228(1)(b) governed the board’s

decision-making process at the parole consideration hearing

in this case. Washington, 294 Or App at 498. That provision

provides:

“At the parole consideration hearing, the prisoner shall

be given a release date in accordance with the applicable

range and variation permitted if the condition which made

the prisoner dangerous is absent or in remission. In the

event that the dangerous condition is found to be present,

reviews will be conducted at least once every two years

until the condition is absent or in remission, at which time

release on parole shall be ordered if the prisoner is other-

wise eligible under the rules. In no event shall the prisoner

be held beyond the maximum sentence less good time cred-

its imposed by the court.”

ORS 144.228 (1)(b). The board is to set a release date for any

person who was originally sentenced under ORS 161.725 as

a dangerous offender when the board is able to affirmatively

find that “the condition which made the prisoner dangerous

is absent or in remission.” In the absence of such affirmative

finding, ORS 144.228 does not authorize the board to set

a release date. Unless and until it can make the required

statutory finding, the board’s task is to set another review

hearing.

800 Guzek v. Board of Parole

In assessing whether a prisoner is still dangerous

at the time of the parole consideration hearing, ORS 144.228

requires the board to consider whether there is evidence

that the prisoner has a mental or emotional disorder that

would satisfy the terms of the dangerous offender statute,

but the board is not limited in its inquiry to the specific

diagnosis or traits that were present when the prisoner was

originally sentenced as a dangerous offender. Bell v. Board

of Parole, 283 Or App 711, 713, 391 P3d 907, rev den, 361 Or

645 (2017). That is at least in part because “the existence

of a particular diagnosis by a medical professional” is not

required when the sentencing court finds that the defen-

dant is a dangerous offender under ORS 161.725. Bell, 283

Or App at 719.

“[B]y requiring the parole board to evaluate the current

status of the condition which made the prisoner dangerous,

we conclude that the legislature intended that the board

evaluate the ‘condition’ found by the sentencing court—

that is, the condition of suffering from a severe personality

disorder indicating a propensity toward criminal activity—

and that such an evaluation does not depend upon the per-

sistence of the specific symptoms or traits present at the

time of sentencing.”

Id. at 720 (internal quotation marks omitted).

In considering whether and how long to defer a

parole consideration hearing the board applies the factors

listed in OAR 255-062-0016.5

5

OAR 255-062-0016 provides this nonexclusive list of factors, one or more of

which would support deferral of the parole consideration hearing date:

“(1) A determination by the Board, based on the psychological evaluation

and all the information available at the hearing, that the inmate has a men-

tal or emotional disturbance, deficiency, condition, or disorder predisposing

him/her to the commission of any crime to a degree rendering the inmate a

danger to the health or safety of others;

“(2) Infractions of institutional rules and discipline;

“(3) Commission of crimes subsequent to the crime of conviction;

“(4) Inmate’s failure to demonstrate understanding of the factors that

led to his/her criminal offense(s);

“(5) Inmate’s demonstrated lack of effort to address criminal risk factors

of psychological or emotional problems;

“(6) Inmate’s demonstrated lack of effort to address criminal risk factors

of substance abuse problems;

Cite as 325 Or App 795 (2023) 801

Here, with respect to the Class A felony convictions

for first-degree rape and first-degree burglary, and pursu-

ant to the then-effective version of ORS 161.725(1)(a), the

sentencing court made findings that petitioner was:

“a Dangerous Offender, based on the court’s finding that

[petitioner] suffers from a severe personality disorder and

[that he] has a propensity to commit crime.”

Maximum sentences of 30 years, with 15-year minimums,

were imposed on those convictions, and additional sen-

tences were imposed on the remaining convictions at that

time. Petitioner was later sentenced for the MVA related

convictions, and those sentences were imposed to run con-

secutively to those that petitioner was already serving. The

cumulative sentences added up to less than 100 years.

At the board’s January 21, 2021, parole consid-

eration hearing, it interviewed petitioner and reviewed

and considered a 36-page psychological evaluation dated

December 16, 2020, prepared by Lynette Hamilton, PsyD,

ABPP, a board-certified forensic psychologist. In determin-

ing whether to set a release date for a dangerous offender,

the board applies a “preponderance of the evidence” stan-

dard in determining whether the condition that made

the inmate dangerous is still present. Davis v. Board of

Parole, 341 Or 442, 448, 144 P3d 931 (2006). “As a practi-

cal matter, the risk of nonpersuasion falls on the prisoner.”

Id. at 447.

“(7) Failure to seek and maintain appropriate work or training;

“(8) Inmate’s failure to seek out and benefit from programming including

but not limited to sex offender treatment, batterers intervention programs,

anger management, cognitive therapy, and victim impact panels where

available;

“(9) Inmate’s inability to experience or demonstrate remorse or empathy;

“(10) Demonstrated poor planning and foresight;

“(11) Demonstrated impulsivity; or

“(12) Demonstrated lack of concern for others, including but not limited

to any registered victims.

“(13) Refusal to participate in Board-ordered psychological evaluation(s)

and/or refusal to participate in Board hearing.

“(14) The inmate is serving a concurrent sentence over which the Board

does not have release authority, and which has a release date ten or more

years from the projected parole release date on the Board sentence.”

802 Guzek v. Board of Parole

As pertinent here, Hamilton described petitioner’s

relevant background concerning, among other things, his

formative years, family of origin, education, employment,

military service, medical and mental health care, legal

issues, the conduct underlying his convictions, and his years

in DOC custody. Hamilton described prior evaluations con-

ducted in the parole consideration hearing context, includ-

ing some focus on sexual functioning and sexual offense

history and psychological testing. Hamilton interviewed

petitioner to get a sense of how he was functioning, and she

administered new batteries of psychological tests and risk

assessment inventories. Her conclusions, generally, were

that petitioner’s psychological test scores were valid, that

petitioner was “reluctant to recognize or acknowledge faults

or problems in himself,” and that he has significant alcohol-

related problems, all of which suggested that any treatment

would be challenging due to petitioner being defensive and

unwilling to talk about personal problems.

Hamilton diagnosed petitioner with antisocial traits,

alcohol use disorder (sustained remission due to con-

trolled environment), and pedophilic disorder (provisional).

Hamilton specifically explained that petitioner’s antisocial

traits were “clearly present,” but that without more infor-

mation about whether petitioner “exhibited symptoms of

conduct disorder as an adolescent,” it was not clear whether

he “meets full diagnostic criteria for antisocial personality

disorder.” The provisional diagnosis of pedophilic disorder

applied because there was a “strong presumption that the

diagnosis is appropriate.” Even though he continued to deny

the allegations that he raped and sodomized his daughter,

petitioner admitted that he began a sexual relationship

with a 13 year-old girl when he was 25 years old. Whether

his sexual interest in young children remained “intense”

was difficult to know, according to Hamilton, because of

petitioner’s advanced age and infirm condition, but the pre-

sumption that petitioner was a pedophile was nevertheless

strong. Hamilton described her use of risk management

tools—the Static-99R and the Risk for Sexual Violence

Protocol (RSVP)—to identify and assess known risk

factors.

Cite as 325 Or App 795 (2023) 803

The board decided not to assign a release date and

to instead reset the matter for another parole consideration

hearing three years later based on these findings:

“[T]he Board finds the offender has a mental or emotional

disturbance, deficiency, condition, or disorder predispos-

ing offender to the commission of any crime to the degree

rendering the offender a danger to the health or safety of

others; therefore, the condition which made the AIC dan-

gerous is not in remission and AIC does continue to remain

a danger.”

At petitioner’s request, the board reviewed its decision and

issued an ARR, in which it again explained its reasons for

deferring the parole consideration hearing.6

Petitioner’s arguments raise (1) a question about

the legal standard that the board was required to apply at

the parole consideration hearing, and (2) a factual question

about whether the board’s decision is supported by substan-

tial evidence and reason. We have already addressed the

question of which statutes apply to the board’s decision,

and now turn to the remaining question as to whether the

board’s decision is supported by substantial evidence and

reason. We conclude that it was.

The board’s BAF together with the ARR reflect suf-

ficient evidence and reason for the board’s decision because

those records detail that the board considered all the infor-

mation presented at the hearing, including the historical

events that led to petitioner’s incarceration as a dangerous

offender in the first place, petitioner’s behavioral and pro-

gram activities and records spanning his years in prison,

and Hamilton’s psychological evaluation. The BAF and ARR

identified and detailed the substance of the evidence that

led the board to conclude that petitioner had a mental or

6

The board expressed frustration at having to explain its decision again

when it wrote in ARR #8 that petitioner’s substantial evidence and reason argu-

ment was “disingenuous” and “baffling,” and that the request was itself evidence

of petitioner’s “deceitfulness.” Those judgments about the motivation or reasons

for petitioner’s request for review were gratuitous. Those gratuitous comments

were not necessary to the board’s decision, they suggested that the board might

use petitioner’s lawful request for review against him, and they were, in fact,

likely to draw more questions from petitioner. Despite those ill-advised com-

ments, they do not cancel the adequacy of the board’s decision on this record.

804 Guzek v. Board of Parole

emotional disturbance or condition that predisposed him to

commit crimes “to a degree rendering [petitioner] a danger

to the health or safety of others.”

We reject petitioner’s argument that the board was

required to use the phrase “dangerous criminal activity”

rather than “any crime” in describing its determination that

petitioner’s mental or emotional condition predisposed him

to criminal activity to a degree that rendered him danger-

ous to others. That argument isolates and latches onto the

phrase “dangerous criminal activity” as used in Huntley to

improperly conclude that, here, the board did not adequately

explain its determination that petitioner remained danger-

ous within the meaning of the dangerous offender statute.

Huntley did not change the board’s role, and it did not change

the standard for the board to follow, in parole consideration

hearings under ORS 144.228. The board’s assessment of

petitioner’s dangerousness was included as part of its expla-

nation for why it could not make the finding that the condi-

tion that made petitioner dangerous was in remission. And

without that finding, the board was without authority to set

a release date.

The BAF referred to Hamilton’s report and specif-

ically mentioned her diagnoses for petitioner—“antisocial

traits, alcohol use disorder in sustained remission in a con-

trolled environment, pedophilic disorder (provisional).” The

BAF also explained in more detail Hamilton’s opinion that

petitioner’s “antisocial traits are clearly present” and con-

nected those traits with concrete examples of petitioner’s

failure to conform to social norms. The BAF described the

board’s “particular concern” that Hamilton assessed peti-

tioner’s chronic risk for violence as moderate, concluding

that the elevated score in a person of advanced age was con-

cerning and directly pertinent to his dangerousness.

The BAF and ARR reflect that the board also exam-

ined petitioner’s lack of effort and understanding related to

the sex offenses, including his complete denial of any respon-

sibility for those crimes, as it considered all the information

before it. In short, the board specifically identified the perti-

nent diagnoses gleaned from Hamilton’s report, petitioner’s

lack of insight into his own criminality, his failure to take

Cite as 325 Or App 795 (2023) 805

responsibility for sexually assaulting his daughter, his fail-

ure to engage in sustained programming while in prison,

and his nonexistent parole plan, as it explained why it was

setting another parole consideration hearing. The board

also identified the factors on which it relied to set the next

hearing out another three years. The BAF and ARR pro-

vide the law and the facts on which the board’s decision was

made and it reflects the reasoning for that decision. That is

what the law requires. Jenkins, 356 Or at 208.

The board’s task was to consider and evaluate all

information brought to it to determine whether it could affir-

matively find that “the condition which made the prisoner

dangerous is absent or in remission.” It was not able to make

that finding here. The fact that Hamilton could not provide

an unqualified diagnosis of antisocial personality disorder

or pedophilic disorder does not mean that the board was

required to affirmatively find that the petitioner no longer

had a mental or emotional disorder that made him danger-

ous or that such disorder was in remission. To the contrary,

the board was obligated to consider all of the information

before it. Like the judge who originally found petitioner

to be a dangerous offender, the board’s job was to reach a

conclusion about mental disorders and dangerousness as

a “lay concept,” not entirely tethered to a psychological or

medical diagnosis. Huntley, 302 Or at 430. In the absence of

the required affirmative finding, ORS 144.228 required the

board to set another review hearing. That is what it did.

Affirmed.