Hessell v. Board of Parole

No. 162 February 26, 2025 265

This is a nonprecedential memorandum opinion

pursuant to ORAP 10.30 and may not be cited

except as provided in ORAP 10.30(1).

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

BRIAN DOUGLAS HESSEL,

Petitioner,

v.

BOARD OF PAROLE AND POST-PRISON

SUPERVISION,

Respondent.

Board of Parole and Post-Prison Supervision

A180078

Argued and submitted May 29, 2024.

Jedediah Peterson argued the cause for petitioner. Also

on the opening brief was O’Connor Weber LLC. Also on the

reply brief was Equal Justice Law.

Carson L. Whitehead, Assistant Attorney General,

argued the cause for respondent. Also on the brief were Ellen

F. Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Shorr, Presiding Judge, Pagán, Judge, and

Mooney, Senior Judge.

SHORR, P. J.

Reversed and remanded.

266 Hessell v. Board of Parole

SHORR, P. J.

Petitioner seeks judicial review of a final order of

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

that postponed his release date for two years under ORS

144.125(2). He argues, among other things, that the board’s

postponement of his release date for engaging in serious

misconduct lacked substantial evidence and substantial

reason. We agree that the board’s order did not sufficiently

explain why petitioner’s conduct constituted serious miscon-

duct, and accordingly, we reverse and remand.

Petitioner was convicted by jury of six counts of

murder and two counts of aggravated murder for killing a

woman in 1989. State v. Hessel, 117 Or App 113, 115, 844 P2d

209 (1992), rev den, 318 Or 26 (1993). He was sentenced to

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

After a hearing on January 5, 2022, the board issued Board

Action Form (BAF) #10 affirming petitioner’s release date of

April 10, 2022. BAF #10 also contains a finding that petition-

er’s emotional disturbance was “not presently so severe as to

constitute a danger to the health or safety of the community.”

The board held another hearing on March 23, 2022,

which petitioner declined to attend. Petitioner does not dis-

pute the following facts. According to the findings made by a

Department of Corrections (DOC) hearings officer and then

further confirmed by the board in BAF #13, petitioner sent a

note to the prison library coordinator on February 14, 2022,

which read: “If it’s not too much trouble- will you be my val-

entine?” For that conduct, petitioner was found in violation

of two DOC rules: Rule 4.15, Compromising an Employee,

and Rule 2.10, Disrespect I. The board found “reasonable

grounds that AIC has engaged in serious misconduct during

confinement” and therefore set a parole postponement hear-

ing pursuant to ORS 144.125(2).

Under ORS 144.125(2), the board “shall postpone a

prisoner’s scheduled release date if it finds, after a hearing,

that the prisoner engaged in serious misconduct during con-

finement.” The Oregon Administrative Rules do not define

“serious misconduct,” but state that “it may be classified

within one of the following four categories * * *: (a) Hazard

Nonprecedential Memo Op: 338 Or App 265 (2025) 267

to human life or health; (b) Hazard to security; (c) Hazard to

property; or (d) Third in a series of rule violations within a

three-month period.” OAR 255-050-0010(2).

At the postponement hearing on April 6, 2022, peti-

tioner argued that he sent the note to get placed in segrega-

tion for security reasons, due to fear of violence from another

prisoner. He said he had “no lascivious intent” and did not

think that the library coordinator would take offense at the

note. After the postponement hearing, the board issued BAF

#13. It found that petitioner had engaged in serious miscon-

duct during confinement constituting a hazard to security

under OAR 255-050-0010(2). Therefore, the board extended

petitioner’s prison term by two years for a projected release

date of April 10, 2024.1 The board further found that “a pres-

ent severe emotional disturbance may be present” and set

another hearing for October 2023 to address that question

with an updated psychological evaluation.

Petitioner sought administrative review of BAF

#13. As relevant here, he argued that the board lacked sub-

stantial evidence to support a finding that he had a pres-

ent severe emotional disturbance (PSED) or that he had

engaged in misconduct which would rise to a level authoriz-

ing the postponement of release on parole. The board denied

relief in Administrative Review Response (ARR) #6:

“[S]ubstantial evidence supported the Board’s finding you

committed serious misconduct during confinement. In

BAF #13, the Board found you committed two DOC rule

violations, Compromising an Employee (Rule 4.15), and

Disrespect I (Rule 2.10). BAF #13 explained that ‘[t]he facts

related to the findings are documented in the violation

report and BAF #12,’ the latter of which provided a sum-

mary of the factual circumstances of the rule violations

you committed. * * * In your case, evidence showing you

engaged in conduct to compromise an employee presents a

serious hazard to security, and substantial evidence sup-

ports the Board’s finding.”2

1

Neither party has submitted any information indicating that this case has

become moot. See ORAP 8.45 (duty to inform court of facts rendering appeal moot).

2

ARR #6 refers to and appears to incorporate BAF #12. BAF #12 provides no

further factual findings nor explanation of the board’s reasoning than reflected

in ARR #6 or BAF #13. Therefore, we do not discuss BAF #12 further.

268 Hessell v. Board of Parole

Petitioner timely seeks judicial review. In his first

assignment of error, he argues that the board erred in find-

ing a PSED. His second and third assignments of error chal-

lenge the board’s determination that he engaged in serious

misconduct and its postponement of his release date for that

reason. The board contends that it did not find a PSED, and

that it correctly postponed petitioner’s release date because

he engaged in serious misconduct. Further, the board argues

that petitioner failed to preserve his argument that his con-

duct did not constitute serious misconduct.

We first briefly address whether the board found a

PSED. BAF #13 did not definitively find a PSED, but rather

indicated that a PSED “may be present,” and set another

hearing to determine that issue with an updated psycholog-

ical report. We therefore reject petitioner’s first assignment

of error.3

Turning to the remaining assignments of error,

petitioner makes several arguments challenging the board’s

conclusion that he committed serious misconduct. Because

it is determinative, we address only petitioner’s argument

that the board erred in not providing substantial reason for

its conclusion that petitioner engaged in serious misconduct.

We begin with the board’s contention that petitioner did not

preserve that argument. Although petitioner raised several

alternative arguments, in his administrative review request

he asserted that there “is no substantial evidence to sup-

port a finding * * * that [he] engaged in misconduct which

would rise to a level authorizing the postponement of release

on parole.” The board’s response in ARR #6 explained that

it proved by substantial evidence that petitioner commit-

ted serious misconduct, indicating that it understood and

considered petitioner’s argument. See State v. Wyatt, 331

Or 335, 343, 15 P3d 22 (2000) (preservation requires the

party to provide the agency “with an explanation of his or

her objection that is specific enough” so that the agency can

“identify its alleged error with enough clarity to permit it

to consider and correct the error immediately, if correction

3

We understand petitioner to have raised this assignment of error to protect

his rights in case we were to conclude that the board had found a PSED. That

conclusion may have provided an alternative basis to affirm the board’s order.

But our resolution effectively makes this assignment of error unnecessary.

Nonprecedential Memo Op: 338 Or App 265 (2025) 269

is warranted”). Petitioner adequately raised the issue of

whether his conduct qualified as serious in his request for

administrative review; the issue is therefore preserved for

our review.

We next address whether the board’s decision to

postpone petitioner’s release date met the substantial rea-

son requirement. “We review a final order of the board for

legal error, substantial evidence, and substantial reason.”

Guzek v. Board of Parole, 325 Or App 795, 796, 530 P3d 510,

rev den, 371 Or 476 (2023). “The substantial reason require-

ment flows logically from, and is necessarily a part of, the

substantial evidence standard, requiring the board to con-

nect the facts of the case and the result reached.” Id. (inter-

nal quotation marks omitted).

We have previously remanded for the board to

explain its reasoning where the board “provided only a con-

clusion * * *, not an explanation.” Castro v. Board of Parole,

232 Or App 75, 85, 220 P3d 772 (2009). In Contreras v. Board

of Parole, 297 Or App 469, 479, 443 P3d 636, rev den, 365 Or

657 (2019), the board deferred the petitioner’s release date

for eight years based on facts it identified in the record and

applied to three factors authorizing deferral for longer than

two years. We reversed because “nowhere does the board

explain or suggest the rationale that it applied to connect

those facts, and those three factors, to the board’s deci-

sion to set the ‘specified deferral period’ at eight years.” Id.

Similarly, in Washington v. Board of Parole, 294 Or App 497,

502-03, 432 P3d 372 (2018), we concluded that the board had

an “obligation to explain” its determination that the peti-

tioner’s condition was severe, where it expressly based its

determination solely on a psychological evaluation which

described his disorder as “moderate.” We noted that it might

have been possible for the board to justify its conclusion

based on other facts in the evaluation or in the record, but

its order “did not refer to any finding of severity, express or

implied.” Id. at 504-05.

Here, the board found that petitioner sent a

Valentine’s note to a DOC employee, broke two DOC rules by

doing so, and determined that his conduct could be classified

into one of the four categories of serious misconduct under

270 Hessell v. Board of Parole

OAR 255-050-0010(2). Petitioner does not contest those facts

but contends that the board did not adequately explain how

those facts constituted serious misconduct as opposed to

merely ordinary misconduct. See State v. Smith, 66 Or App

374, 384, 675 P2d 1060, rev den, 297 Or 339 (1984) (noting

that “serious” can be synonymous with “severe”). The use of

the word “serious” implies that plain misconduct, on its own

and without further explanation, is insufficient grounds to

postpone a prisoner’s release date. The board appears to

argue that petitioner’s conduct qualified as serious because

he engaged in conduct to compromise an employee, which

presented a hazard to security. We agree that conduct to

compromise an employee could constitute serious miscon-

duct. But the board did not explain how any of the facts

it found, either alone or in combination, constituted serious

misconduct here. See Washington, 294 Or App at 499 (“The

‘substantial reason’ standard requires the board to provide

an explanation connecting the adequately supported facts to

the inference it draws from them.”). Because the board did

not provide an explanation that sufficiently connected the

facts of the case to the result it reached, its decision lacked

substantial reason. We therefore reverse and remand for the

board to explain its reasoning. See ORS 183.482(8)(c) (pro-

viding that the court “shall set aside or remand the [board’s]

order if the court finds that the order is not supported by

substantial evidence in the record”); ORS 144.335(3) (“The

Court of Appeals may affirm, reverse or remand the order

on the same basis as provided in ORS 183.482(8).”).

Reversed and remanded.