Black v. Board of Parole

524 July 2, 2025 No. 580

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

KYLE COLLEEN BLACK,

Petitioner,

v.

BOARD OF PAROLE

AND POST-PRISON SUPERVISION,

Respondent.

Board of Parole and Post-Prison Supervision

A177739 (Control)

KYLE COLLEEN BLACK,

Plaintiff-Appellant,

v.

Nichole BROWN,

Superintendent,

Coffee Creek Correctional Facility,

Defendant-Respondent.

Washington County Circuit Court

22CV08655; A178929

KYLE COLLEEN BLACK,

Petitioner,

v.

BOARD OF PAROLE

AND POST-PRISON SUPERVISION,

Respondent.

Board of Parole and Post-Prison Supervision

A181213

Eric Butterfield, Judge. (Appellate No. A178929)

Argued and submitted on September 30, 2024.

Alexander Coven argued the cause and filed the briefs for

appellant/petitioner. Also on the briefs was Oregon Justice

Resource Center.

Jeff J. Payne, Assistant Attorney General, argued the

cause for respondents. Also on the brief were Ellen F.

Cite as 341 Or App 524 (2025) 525

Rosenblum, Attorney General and Benjamin Gutman,

Solicitor General.

Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce,

Judge.

AOYAGI, P. J.

In Case No. A181213, reversed and remanded. In Case

Nos. A177739 and A178929, affirmed.

526 Black v. Board of Parole

AOYAGI, P. J.

In this consolidated appeal, petitioner, who was

imprisoned for over 25 years for aggravated murder, chal-

lenges three separate orders or judgments relating to her

release. First, she seeks judicial review of an order of the

Board of Parole and Post-Prison Supervision that set April

12, 2022, as her release date on the aggravated-murder sen-

tence, raising an argument regarding her earned-time cred-

its under ORS 421.121 (1995).1 Second, petitioner appeals

a circuit court judgment dismissing her petition for a writ

of habeas corpus. She contends that the Department of

Corrections (DOC) was responsible for setting her release

date and set it incorrectly due to misapplication of her

earned-time credits. Third, petitioner seeks judicial review

of a board order that released her from prison onto parole

instead of post-prison supervision (PPS).

Regarding the earned-time issues, we agree with

respondents that it was the board, not DOC, that was

responsible for setting petitioner’s physical and legal release

dates, such that petitioner’s challenge to how her earned-

time credits were applied is properly directed toward the

board. However, because petitioner did not seek judicial

review of the board order applying her earned-time credits,

instead seeking review of an earlier order, we are ultimately

unable to address the board’s handling of the earned-time

credits. As for the final issue, we agree with petitioner that

the board erred in releasing her to parole rather than PPS.

I. FACTS

In 1996, petitioner pleaded guilty to aggravated

murder. She was sentenced to life in prison, with a mini-

mum 30-year term of incarceration and lifetime PPS. See

ORS 163.105(1)(c) (1995)2 (requiring that a person convicted

of aggravated murder and sentenced to life imprisonment

1

ORS 421.121 has been amended numerous times since 1995. See Or Laws

2007, ch 15, § 5; Or Laws 2009, ch 660, §§ 17, 19; Or Laws 2009, ch 623, § 1; Or

Laws 2010, ch 2, §§ 1, 3; Or Laws 2015, ch 625, § 1; Or Laws 2019, ch 635, § 25; Or

Laws 2019, ch 213, § 67.

2

ORS 163.105 has been amended numerous times since 1995. See Or Laws

1999, ch 59, § 31; Or Laws 1999, ch 782, § 5; Or Laws 2007, ch 717, § 1; Or Laws

2009, ch 660, § 6; Or Laws 2015, ch 820, § 45; Or Laws 2019, ch 634, § 27.

Cite as 341 Or App 524 (2025) 527

be ordered “confined for a minimum of 30 years without

possibility of parole, release on work release or any form of

temporary leave or employment at a forest or work camp”).

In a separate case, she was convicted of two counts of aggra-

vated first-degree theft and, on each count, sentenced to 12

months in prison, running consecutively to the other sen-

tences, and 24 months of PPS.3

On August 4, 2021, the board held a murder-review

hearing and found that petitioner was likely to be rehabil-

itated within a reasonable time. See ORS 163.105(2) (1995)

(providing for the board to hold a hearing “[a]t any time after

25 years from the date of imposition of a minimum period of

confinement pursuant to subsection (1)(c),” to determine “if

the prisoner is likely to be rehabilitated within a reasonable

period of time”). In Board Action Form 2 (BAF 2), the board

converted petitioner’s life sentence to a sentence of life with

the possibility of parole, set petitioner’s prison term, and

provided a projected release date. See ORS 163.105(3) (1995)

(providing for such an order when the board unanimously

“finds that the prisoner is capable of rehabilitation and that

the terms of the prisoner’s confinement should be changed

to life imprisonment with the possibility of parole, or work

release”).

Regarding petitioner’s prison term, the board

employed a matrix system that yielded a range of possible

prison term lengths. See Severy v. Board of Parole, 274 Or

App 330, 333 n 1, 360 P3d 682 (2015), rev den, 359 Or 667

(2016) (explaining that, where a trial court imposed an inde-

terminate sentence, the board assigns a “matrix range” and

then sets the length of the person’s term of incarceration

based on that range). Petitioner’s matrix range was 168 to

228 months. Because a prison term in that range would

have resulted in a release date years in the past, the board

instead set petitioner’s prison term at 309 months, which

would allow time for an “exit interview” before release. See

ORS 144.125 (1995), amended by Or Laws 1999, ch 141, § 1;

Or Laws 2009, ch 660, § 3 (at an exit interview, the board

3

In October 2022, the sentencing judgment was amended to run petitioner’s

theft sentences concurrently with each other and the aggravated-murder sen-

tence, resulting in her immediate release. That event is irrelevant to the issues

on appeal in this case.

528 Black v. Board of Parole

considers statutorily specified bases for postponement of a

person’s release date, such as the person having engaged

in “serious misconduct during confinement” or having “a

mental or emotional disturbance, deficiency, condition or

disorder predisposing [them] to the commission of a crime

to a degree rendering the prisoner a danger to the health or

safety of the community”). With a 309-month prison term,

petitioner was given a projected release date of April 12,

2022, and her exit interview was scheduled for January 5,

2022.

In response to BAF 2, petitioner filed a request for

administrative review, challenging her prison term and

projected release date as not accounting for her statutory

earned-time credits. See ORS 421.121 (1995) (allowing up to

a 20 percent reduction of a person’s incarceration term for

“appropriate institutional behavior”). She argued that, with

earned-time credits, her release date on her aggravated-

murder sentence should have been effective August 10, 2021

(i.e., the date that the board issued BAF 2).

About 10 days after petitioner filed her adminis-

trative review request, DOC calculated petitioner’s earned-

time credits and sent a memorandum to the board. Using

petitioner’s “Current Projected Parole Release Date” of April

12, 2022, DOC calculated petitioner’s “Estimated Projected

Earned Date” as March 28, 2017—a date nearly five years

in the past. DOC noted that it did not intend to release peti-

tioner based on its calculation, because DOC “cannot release

the inmate without authorization from the [board].”

On November 3, 2021, the board issued

Administrative Review Response 2 (ARR 2). The board

denied any relief on BAF 2, reasoning that petitioner’s com-

plaint was “outside the scope of [BAF 2],” because it was

really aimed at DOC’s failure “to timely apply earned time

credit,” rather than with BAF 2 itself. Petitioner seeks judi-

cial review of that order in appellate case number A177739.

While the board was pointing the finger at DOC,

DOC was pointing the finger at the board. In addition to

challenging BAF 2, petitioner had also filed a grievance with

DOC for failing to release her immediately upon calculating

Cite as 341 Or App 524 (2025) 529

her earned time. DOC denied relief, explaining that the

board takes DOC’s earned-time calculation “into consider-

ation when making [its] final determination” but that it is

ultimately the board, not DOC, that sets the release date.

DOC reiterated that position on administrative appeal of its

decision on the grievance:

“This projected earned date does not result in an [adult in

custody’s] release, it simply notifies the [board] when their

exit interview could be held. The authorization for release

and the parole release date on the LIFE sentence is still

determined by the [board]; OAR 291-097-0236(1)(d)(B).

“When the calculation of the projected earned date

results in a date in the past for a LIFE sentence, it does not

indicate this sentence is complete and it does not make a

person eligible for an immediate release. [ORS] 163.105(2)

(1995) states the [board] has the authority to set a release

date.”

Meanwhile, petitioner had her exit interview on

January 5, 2022, after which the board issued Board Action

Form 3 (BAF 3). The board found no reason to defer petition-

er’s release date and, considering DOC’s earned-time calcu-

lation, adjusted petitioner’s parole release date to January

5, 2022, i.e., the date of the exit interview. The board stated

that it could not set a release date earlier than the exit inter-

view date. Petitioner did not seek judicial review of BAF 3.

Although she had finished serving her aggravated-

murder sentence at that point, petitioner remained in prison

serving her two consecutive 12-month sentences for aggra-

vated first-degree theft. Petitioner filed a petition for a writ

of habeas corpus in the Washington County Circuit Court,

seeking immediate release. She alleged that DOC was

wrongfully imprisoning her, having misapplied the earned-

time credits for her murder sentence and thus delayed start-

ing the clock on her theft sentences, and had denied her due

process. In petitioner’s view, DOC should have used March

28, 2017, as her release date on her murder sentence, regard-

less of the release date set by the board. The superintendent

moved to deny the petition for failure to state a claim, argu-

ing that the board was responsible for setting petitioner’s

release date, not DOC. The trial court agreed and denied

530 Black v. Board of Parole

the petition. Petitioner appeals the resulting judgment in

appellate case number A178929.

Petitioner finished serving her theft sentences

in October 2022 and was released from prison. Upon her

release, the board issued an order of supervision condi-

tions, placing petitioner on lifetime parole. Petitioner sought

administrative review, arguing that she should have been

released to PPS instead of parole. The board denied relief in

Administrative Review Response 4 (ARR 4), stating:

“An offender convicted of aggravated murder is sub-

ject to parole release conditions and supervision, without

regard to crime commission date. The Board rejects your

contrary argument that the Sentencing Guidelines, or the

sentencing court’s purported application of the Sentencing

Guidelines, divest the Board of its statutory authority to

authorize your release on parole.

“Based on your conviction for aggravated murder, the

Board properly placed you on life-time parole supervision.”

(Citations omitted.) Petitioner seeks judicial review of that

order in appellate case number A181213.

II. BOARD ORDER SETTING

PETITIONER’S RELEASE DATE

We begin with petitioner’s challenge to ARR 2,

the board order reviewing BAF 2, issued after petitioner’s

murder-review hearing, in which the board converted peti-

tioner’s aggravated-murder sentence and set a projected

release date of April 12, 2022.4 Although her petition for

judicial review seeks review only of ARR 2 and not any order

issued by DOC, petitioner contends that the board and DOC

deprived her of the earned-time credits to which she was

4

Before any appellate briefs were filed, respondents moved to dismiss the

two appeals relating to the calculation of petitioner’s release date, asserting that

petitioner’s release from prison rendered them moot. That motion was denied in

an unpublished order by our Chief Judge. In their answering brief, respondents

again raise mootness, pointing out that petitioner has finished serving PPS on

her theft convictions, eliminating one of the two reasons cited in the Chief Judge’s

order for the appeals not being moot. Meanwhile, after oral argument, petitioner

filed an action against respondents in federal court. See Free Oregon, Inc. v.

Oregon Health Authority, 329 Or App 460, 465 n 5, 541 P3d 897 (2023) (holding

that a decision’s effect on “current litigation” may be sufficient to avoid mootness).

Having fully considered the parties’ arguments, we remain unconvinced that the

appeals are moot and, therefore, proceed to the merits.

Cite as 341 Or App 524 (2025) 531

entitled under ORS 421.121 (1995), describing the error as

one that “respondents jointly” committed. As we will explain,

the mismatch between the subject of petitioner’s appeal and

the theory underlying her claim of error proves dispositive.

Petitioner makes two alternative arguments as to

how her earned-time credits should have been calculated

and applied once the board converted her sentence to life

with the possibility of parole. Primarily, she argues that,

upon the conversion of her sentence from life to life with

the possibility of parole, she was subject to a 30-year deter-

minate incarceration term and that respondents should

have calculated and applied her earned-time credits based

on that determinate sentence. Alternatively, she argues

that, when the board converted her sentence and set a 309-

month prison term, respondents should have calculated and

applied her earned time based on that 309-month term. Of

course, DOC did perform its calculation on her 309-month

term, but petitioner argues that the board erred when it set

her release date on the date of her exit interview in 2022,

rather than DOC’s calculated earned-time release date in

2017.

Our review is for legal error. Lehman v. Board of

Parole, 333 Or App 417, 419, 552 P3d 718 (2024), rev dis-

missed as improvidently allowed, unpublished order in case

number S071263 (Jan 7, 2025). We apply the substantive law

in effect at the time of petitioner’s crime. Barrett v. Board of

Parole, 332 Or App 463, 465 n 1, 549 P3d 12 (2024).

It is undisputed that petitioner engaged in “appro-

priate institutional behavior” while incarcerated and was

therefore entitled to earned-time credits on her aggravated-

murder sentence under ORS 421.121 (1995), which provides,

in relevant part:

“(1) Except as provided in ORS 137.635, each inmate

sentenced to the custody of the department for felonies com-

mitted on or after November 1, 1989, shall be eligible for a

reduction in the term of incarceration for appropriate insti-

tutional behavior, as defined by rule of the Department of

Corrections, and for participation in the functional literacy

program described in ORS 421.084.

532 Black v. Board of Parole

“(2) The maximum amount of time credits earned for

appropriate institutional behavior or for participation in

the functional literacy program described in ORS 421.084

shall not exceed 20 percent of the total term of incarcera-

tion in a Department of Corrections institution.”

What is disputed is whether petitioner was entitled to a

release date of March 28, 2017, even though that date was in

the past, or whether the board was permitted to adjust her

release date to April 12, 2022, to bring it into the present

and allow time for an exit interview.

In most respects, this case bears a striking similar-

ity to Lehman, a case decided after the completion of brief-

ing in this case. The petitioner in Lehman was convicted of

aggravated murder and second-degree assault in two sepa-

rate cases. 333 Or App at 419. After a murder-review hear-

ing, the board issued an order converting his life sentence

for aggravated murder to life with the possibility of parole

and establishing a prison term of 290 months, with a pro-

jected release date of October 6, 2019. Id. The board held

an exit interview on August 15, 2019, and reaffirmed that

release date. Id. As a result, on October 6, 2019, the peti-

tioner finished serving his aggravated-murder sentence and

began serving his consecutive assault sentence. Id.

While serving the assault sentence, the petitioner

raised the issue of earned time on his aggravated-murder

sentence, and DOC sent a memorandum to the board contain-

ing DOC’s calculation of earned-time credits and a resulting

estimated release date of December 20, 2016—a date more

than four years in the past at that point. Id. at 419-20. With

that information in hand, the board issued an order stating

that it lacked authority to set a release date for aggravated

murder earlier than the date of the exit interview. Id. at 420.

The board did, however, adjust the release date to the date

of the exit interview. Id. On administrative review, the peti-

tioner argued that the board was required by statute and

administrative rule to grant him his full earned-time cred-

its and, therefore, should have set his aggravated-murder

release date for December 20, 2016, which would then also

be the start date for serving his assault sentence. Id. The

board denied relief. Id. It took the position that the board

Cite as 341 Or App 524 (2025) 533

was entitled to conduct an exit interview before releasing

the petitioner and that the petitioner was not entitled to

earned-time credit until the board set his firm release date

at the exit interview, making the exit interview date the

earliest possible release date. Id.

On judicial review, we reversed the board’s order.

We agreed with the board that, under State ex rel Engweiler

v. Cook, 340 Or 373, 383, 133 P3d 904 (2006), DOC could

not calculate earned-time credits until the board converted

the petitioner’s aggravated-murder sentence to life with

the possibility of parole and set a projected release date.

Lehman, 333 Or App at 421. We also agreed with the board

that, under Janowski/Fleming v. Board of Parole, 349 Or

432, 459, 245 P3d 1270 (2010), the board was not statuto-

rily required to physically release the petitioner before it had

the opportunity to conduct an exit interview. Lehman, 333

Or App at 423-24. However, we explained that the board

had not identified any legal constraint on its ability to ret-

roactively adjust petitioner’s release date to account for his

earned-time credits, so as to allow him to begin serving his

assault sentence earlier. Id. at 424. We concluded that exist-

ing case law did “not limit the board’s authority to ‘schedule’

petitioner’s release date” and that the board had erred in

concluding otherwise. Id. at 423. We remanded for reconsid-

eration of the board’s order. Id. at 424.

At first blush, Lehman would seem to control this

case.5 Upon closer scrutiny, however, we conclude that it does

not, because petitioner did not seek judicial review of BAF 3,

only BAF 2. Again, petitioner raises two alternative theo-

ries as to how earned time should have been calculated once

the board converted her sentence to life with the possibility

of parole in BAF 2. But under either of her proposed theories

5

We note that petitioner has identified a potential inconsistency in our

post-Lehman decisions, in that our nonprecedential memorandum opinion

in Barrett v. Board of Parole, 336 Or App 215 (2024), rev allowed, 373 Or 736

(2025), does not mention Lehman and, in petitioner’s view, is inconsistent with

it. Because Barrett is a nonprecedential decision, there is no inconsistency in the

actual law—see ORAP 10.30(1)(c) (“Nonprecedential memorandum opinions are

not precedent and are not binding authority except as relevant under the law of

the case doctrine or the rules of claim preclusion or issue preclusion.”)—and we

decline to comment on Barrett given that the Supreme Court recently granted

review of that decision.

534 Black v. Board of Parole

and under the reasoning of Lehman, the issuance of BAF 2

was what triggered DOC’s ability to calculate petitioner’s

earned-time credits, and BAF 3 was the order in which the

board decided how to apply petitioner’s earned-time credits

in setting her firm release date. Therefore, any misapplica-

tion of petitioner’s earned-time credits occurred in BAF 3,

not BAF 2. And petitioner has not sought review of BAF 3,

nor of any DOC order. Although it is an unsatisfying result

in a case that bears such obvious similarity to Lehman, we

cannot reverse BAF 3 or any unspecified DOC order, when

those orders are not on review, and the error alleged by peti-

tioner simply does not exist in BAF 2, the order that is on

review. For that reason, we reject petitioner’s challenge to

the board’s calculation of her release date without reaching

the merits.

We affirm the order on judicial review in case num-

ber A177739.

III. DENIAL OF PETITION FOR HABEAS CORPUS

We next consider petitioner’s challenge to the cir-

cuit court judgment denying her petition for a writ of habeas

corpus.

On March 11, 2022, about two months after com-

pleting her aggravated-murder sentence (per the board’s

release date), petitioner filed a petition for a writ of habeas

corpus in Washington County Circuit Court. Petitioner

alleged that, due to the misapplication of earned-time cred-

its for her aggravated-murder sentence, DOC was using the

wrong start date for her theft sentences and, thus, contin-

ued to imprison her at a time when she should have already

been released.

The superintendent moved to deny the petition for

failure to state a claim on which relief could be granted.

The superintendent argued (1) that the board, not DOC, sets

the release date for an aggravated-murder sentence; (2) that

DOC’s earned-time calculations do not themselves result

in release but, instead, are properly used by the board to

set the exit interview date; and (3) that even if DOC had

authority to release a person serving an aggravated murder

sentence, it could not do so before the exit interview took

Cite as 341 Or App 524 (2025) 535

place. The court held a hearing and then denied the petition,

incorporating by reference the superintendent’s argument

that it was the board’s responsibility to set the release date

and that DOC lacked authority to vary the date set by the

board.

Petitioner challenges that ruling, which we review

for legal error. Dunn v. Hill, 211 Or App 590, 597, 156 P3d

72 (2007). The crux of petitioner’s argument is that, as soon

as the board set her prison term, DOC was required to cal-

culate and implement her earned-time credits by setting

March 28, 2017, as the end date for her aggravated-murder

sentence, irrespective of the release date set by the board.6

She acknowledges that under ORS 163.105 (1995), which

governs aggravated-murder sentences, and ORS 144.125

(1995), which provides for an exit interview, the board has

the “responsibility for making release decisions,” but she

argues “that is not the same as the duty to properly cal-

culate and apply the individual’s incarceration terms,” a

responsibility that she views as lying with DOC under ORS

137.320(3), ORS 137.370, and ORS 421.121.7 As we under-

stand it, petitioner views the board as responsible for deter-

mining a person’s physical release date from prison and

DOC as responsible for determining the legal end date of a

prison term.

Petitioner’s conceptualization of the division of

authority between the board and DOC is facially plausible.

Lehman recognizes that an individual’s physical and legal

release dates on an aggravated-murder sentence may not

6

Although petitioner argued in her challenge to ARR 2 (discussed above)

that the legal effect of the board converting her life sentence to life with the pos-

sibility of parole was to convert her sentence to a 30-year determinate sentence,

she does not make that argument in the context of her habeas appeal. Instead,

she operates on the assumption that DOC properly calculated her earned-time

adjusted release date as March 28, 2017, based on the board’s 309-month prison

term. Her argument is only that DOC, rather than the board, had the legal

authority and duty to effectuate its adjusted release date.

7

ORS 137.320(3) provides, in relevant part, that “[DOC] shall establish a

case file and compute the defendant’s sentence in accordance with the provisions

of ORS 137.370.” ORS 137.370 governs the extent to with DOC shall credit time

spent in pre- and post-sentencing custody towards particular sentences and

the circumstances in which time spent in custody on one criminal charge can

be credited towards the incarceration term for another criminal charge. ORS

421.121 provides for earned-time credits.

536 Black v. Board of Parole

always align, and we are unaware of anything that would

preclude the legislature from dividing responsibility in the

way that petitioner proposes. We are ultimately unper-

suaded, however, that the legislature has in fact created

such a division of responsibility.

ORS 163.105 (1995) and ORS 144.125 (1995) squarely

place upon the board the authority to determine a person’s

prison term and release date for aggravated murder. See

Engweiler, 340 Or at 383 (explaining that, as to aggravated

murder, “the board is responsible for determining the actual

duration of * * * imprisonment”); Forbus v. Board of Parole,

309 Or App 296, 302, 482 P3d 95 (2021) (“The board then

is required to * * * set the offender’s prison term and initial

date of release on parole under the matrix rules.”); OAR 255-

032-0037 (requiring the board to “establish the prison term”

following the conversion of a lifetime prison sentence to a

sentence of life with the possibility of parole). And, although

petitioner is correct that ORS 137.320(3), ORS 137.370, and

ORS 421.121 require DOC to properly calculate how much

time a person has served in prison on a given sentence

and their earned-time credits, those statutes do not autho-

rize DOC to effectuate a release date for an indeterminate

prison sentence independently of the board. Cf. Engweiler v.

Persson, 354 Or 549, 551, 316 P3d 264 (2013) (rejecting the

petitioner’s argument that DOC was required to release him

immediately to give effect to his earned-time credit on an

aggravated-murder sentence, because the board had not yet

held an exit interview).

The division of responsibility is also reflected in

OAR XXX-XX-XXXX(1)(d), which addresses life sentences

for murder and aggravated murder otherwise eligible for

earned-time credits. It provides that, once the board sets

an initial prison term, DOC must calculate the person’s

earned-time credits and transmit that information to the

board. Specifically, OAR XXX-XX-XXXX(1)(d)(A) requires DOC

to “provide the calculated earned date to the [board] only

after the initial prison term has been established[,]” and

OAR XXX-XX-XXXX(1)(d)(B) provides that DOC’s “calculation

of earned time on the initial prison term will not generate

either a ‘parole release date’ or a ‘projected earned time

Cite as 341 Or App 524 (2025) 537

release date’ on the life sentence as the parole release date

is still determined by the [board].” Then, the board must use

that information to implement the credits as required by

law.

We acknowledge petitioner’s frustration in trying

to pin down who is responsible for what with respect to

earned-time credits, particularly given the board’s rationale

for denying relief in BAF 2—that petitioner’s complaint was

really directed to DOC actions—while DOC pointed her

back to the board in denying her parallel DOC grievance.

We hope that, in cases where a person sentenced for aggra-

vated murder is eligible for earned-time credits, this opinion

may clarify any uncertainty as to the division of responsi-

bility. In short, as explained above, the board has statutory

authority to convert an indeterminate life sentence to a

sentence of life with the possibility of release and to set a

prison term. Once that occurs, DOC must calculate the per-

son’s earned-time credits and transmit that information to

the board. Then, with that information in hand, the board

must adjust the projected release date to reflect earned-time

credits.

Because it was the board’s responsibility to set peti-

tioner’s release date on her aggravated-murder sentence,

and because DOC lacked authority to disregard the release

date set by the board, the trial court did not err in denying

petitioner’s habeas corpus petition. We therefore affirm the

judgment on appeal in case number A178929.

IV. RELEASE TO PAROLE OR PPS

We lastly address petitioner’s challenge to the

board’s order releasing her to parole rather than PPS. When

petitioner was originally sentenced for aggravated murder,

the court imposed “a period of post-prison supervision for

the remainder of her natural life.” (Emphasis added.) The

board nevertheless released petitioner to parole, reasoning

that “[a]n offender convicted of aggravated murder is subject

to parole release conditions and supervision, without regard

to crime commission date.” It rejected petitioner’s “contrary

argument that the Sentencing Guidelines, or the sentencing

court’s purported application of the Sentencing Guidelines,

538 Black v. Board of Parole

divest the Board of its statutory authority to authorize your

release on parole.” The board took the view that aggravated-

murder sentences are not subject to Oregon’s sentencing

guidelines, and it relied on Oregon Laws 1989, chapter 790,

section 28, as authority that aggravated-murder sentences

remain subject to the parole system regardless of when the

crime was committed.

The parties’ dispute boils down to two different

views of how sentencing works for aggravated murders com-

mitted after November 1, 1989. On the one hand, aggravated-

murder sentences are governed by ORS 163.105, which pro-

vides for a death sentence or an indeterminate life sentence,

which petitioner acknowledges means that they are not sub-

ject to the typical sentencing-guidelines procedures whereby

a presumptive determinate incarceration term is dictated by

the sentencing guidelines grid. She argues, however, that,

like all crimes committed after November 1989, sentences

for aggravated murders still fall under the greater umbrella

of what we will call the “sentencing guidelines system.”

That is, she argues that, to the extent that ORS 163.105

does not specifically overrule the normal operation of the

sentencing guidelines system, the rules of that system still

control—and, because ORS 163.105 does not specifically dic-

tate release to parole, the rules of the sentencing guidelines

system control and mandate release to PPS.8

Respondents disagree. Relying chiefly on Oregon

Laws 1989, chapter 790, section 28, they argue that all

aggravated murder sentences remain subject to the “parole

matrix system” that preceded the sentencing guidelines sys-

tem, regardless of the date the crime was committed, and

that the parole matrix system requires release to parole.

The resolution of the parties’ dispute thus turns on

whether sentences for aggravated murders committed after

November 1, 1989, fall under the umbrella of the sentencing

guidelines system or the parole matrix system. Because the

issue before us concerns the proper construction of applicable

8

Petitioner also argues that releasing her to parole supervision would vio-

late the ex post facto principles of the state and federal constitutions. Because we

ultimately agree with petitioner’s subconstitutional arguments, we do not reach

her constitutional one.

Cite as 341 Or App 524 (2025) 539

statutes and rules, we review the board’s decision for legal

error. Kragt v. Board of Parole, 373 Or 191, 197, 563 P3d 359

(2025); ORS 144.335(3) (judicial review of a board decision

is subject to ORS 183.482(8)); ORS 183.482(8)(a) (legal deter-

minations are reviewed for errors of law).

At the outset, we acknowledge that the issue pre-

sented is a difficult one. Relying on the law in effect at the

time of petitioner’s crime, Barrett, 332 Or App at 465 n 1,

each of the parties makes compelling arguments for their

position. And even after a thorough analysis of the appli-

cable rules and statutes, we admit that there remain ques-

tions that cannot easily be answered. Yet, on the whole, we

conclude that petitioner has the better argument and that

sentences for post-1989 aggravated murders are under the

umbrella of the sentencing guidelines system and, conse-

quently, that petitioner should have been released to PPS.

To explain our conclusion, we summarize the parole matrix

and sentencing guideline systems, examine ORS 163.105

(the aggravated-murder sentencing statute), discuss the

rules of the sentencing guidelines system that explicitly

apply to aggravated-murder sentences, and then embark

on a detailed examination of Oregon Laws 1989, chapter

790, section 28, the statute on which respondents’ argument

chiefly relies.

A. Overview of the Parole-Matrix and Sentencing-Guidelines

Systems

Prior to 1989, Oregon used the parole matrix sys-

tem to determine the length of a person’s incarceration term

for a felony conviction. Under that system, the sentencing

court would impose a maximum term of incarceration (and

sometimes a minimum term of incarceration), but the board

would use a matrix that dictated the actual length of the

person’s prison term. Engweiler v. Board of Parole, 343 Or

536, 540, 175 P3d 408 (2007). Sentences imposed under the

parole matrix system were “indeterminate,” in that the pre-

cise length of the prison term was undefined until set by

the board. See ORS 137.120(1) (defining “indeterminate sen-

tence” to be one in which the sentencing court sentenced

a person to “imprisonment for an indeterminate period of

time, but stat[ed] and fix[ed] in the judgment and sentence

540 Black v. Board of Parole

a maximum term”). After serving the prison term set by the

board, the person would be released on parole and, absent

revocation, remain on parole under board supervision until

the end of the maximum term of incarceration imposed in

the judgment. Campbell v. State of Oregon, 254 Or App 726,

730, 297 P3d 489, rev den, 353 Or 747 (2013).

Effective November 1, 1989, Oregon Laws 1989,

chapter 790, replaced the parole matrix system with the sen-

tencing guidelines system. Under the sentencing guidelines

system, trial courts are “charged with imposing a determi-

nate sentence for most felony convictions.” Engweiler, 343

Or at 540. The determinate sentence “is based on a pre-

sumptive term determined pursuant to a set of legislatively

approved guidelines, from which a sentencing court has

limited discretion to deviate. The inmate then serves the

sentence that the trial court imposes, without eligibility for

release on parole.” Id. at 540-41. The sentencing guidelines

system “eliminated any kind of release on parole for persons

subject to its provisions.” Id. at 541. Instead, upon release, a

person serves a term of PPS. OAR 213-005-0002.

As a general rule, crimes committed prior to

November 1989 are subject to the parole matrix system (with

its indeterminate sentences and release on parole), while

crimes committed after that date are subject to the sen-

tencing guidelines system (with its determinate sentences

and release to PPS). “[F]or felonies committed on or after

November 1, 1989,” a sentencing court must “pass sentence

* * * in accordance with rules of the Oregon Criminal Justice

Commission [(i.e., the sentencing guidelines)] unless other-

wise specifically provided by law.” ORS 137.010(1). And the

board’s authority to release individuals on parole is gener-

ally limited to crimes committed prior to November 1, 1989.

See ORS 144.050 (“Subject to applicable laws, the [board]

may authorize any adult in custody, who is committed to the

legal and physical custody of the Department of Corrections

for an offense committed prior to November 1, 1989, to go

upon parole subject to being arrested and detained under

written order of the board or as provided in ORS 144.350.

The [board] may establish rules applicable to parole.”).

Cite as 341 Or App 524 (2025) 541

If that were the end of the story, the answer to the

question presented in this case would be clear—but it is not,

because aggravated-murder sentences are subject to some

special rules, which we discuss next.

B. ORS 163.105, the Statute that Governs Aggravated-

Murder Sentencing

ORS 163.105 (1995) governed sentencing for aggra-

vated murder at the time of petitioner’s crime.9 Aggravated

murder remained subject to indeterminate sentencing, as

it still does today, with three possible sentences available:

death, life imprisonment without the possibility of parole or

work release, or life imprisonment. ORS 163.105(1) (1995);

State v. Ambill, 282 Or App 821, 828, 385 P3d 1110 (2016),

rev den, 361 Or 821 (2016), and rev den, 361 Or 524 (2017)

(describing life sentences as “indeterminate” sentences).

A court sentencing a defendant to the third option was

required to “order that the defendant * * * be confined for a

minimum of 30 years without possibility of parole, release on

work release or any form of temporary leave or employment

at a forest or work camp.” ORS 163.105(1)(c) (1995). Then,

once the person has served 25 years in prison, the board

is to hold a murder-review hearing to determine whether

the person is likely to be rehabilitated in a reasonable time.

ORS 163.105(2) (1995). If so, the board must enter an order

“convert[ing] the terms of the prisoner’s confinement to life

imprisonment with the possibility of parole or work release.”

ORS 163.105(3) (1995). That, in turn, allows for the possibil-

ity of future release from prison.

Notably, ORS 163.105 contains no explicit pro-

vision for how the board should calculate the length of a

person’s prison term once their sentence is converted to life

with the possibility of release. But, in Janowski/Fleming,

the Supreme Court held that the legislature intended the

parole matrix rules in effect at the time of the crime to be

used for that purpose, because there was no “alternative to

the matrix system to set parole release dates for prisoners

whose terms of confinement were converted to life in prison

9

ORS 163.105 has been amended numerous times since 1995, but it remains

largely the same with regard to the issue on appeal, save for an amendment in

1999 that we discuss more below.

542 Black v. Board of Parole

with the possibility of parole.” 349 Or at 452-53. Thus, ORS

163.105 implicitly integrated into its operation the parole

matrix rules for determining the length of prison terms. The

legislature has never amended ORS 163.105 to provide an

alternative means for determining the length of an inde-

terminate prison term; therefore, that purpose-specific inte-

gration of the matrix rules into ORS 163.105’s operation

remains a reality today—and is how the board determined

petitioner’s prison term, as described earlier. That does not

answer the question, however, whether a person who fin-

ishes serving the prison term so set should be released onto

parole or PPS.

The board argues that the very text of ORS 163.105

(1995) precludes the possibility that persons convicted of

aggravated murder can be released on PPS, by referring

only to the possibility of “parole” or “work release.” Petitioner

counters that the omission was simply an oversight—indeed,

one that the legislature fixed in 1999 by amending ORS

163.105(3) to provide:

“If, upon hearing all of the evidence, the board * * * finds

that the prisoner is capable of rehabilitation and that the

terms of the prisoner’s confinement should be changed to

life imprisonment with the possibility of parole, release to

post-prison supervision or work release, it shall enter an

order to that effect and the order shall convert the terms

of the prisoner’s confinement to life imprisonment with

the possibility of parole, release to post-prison supervision

or work release and may set a release date. Otherwise the

board shall deny the relief sought in the petition.”

Or Laws 1999, ch 782, § 5 (symbols replaced with italicization

to show added language). Interestingly, that amendment was

proposed by Diane Rea, chairperson of the board. Exhibit A,

House Committee on Judiciary, Subcommittee on Criminal

Law, HB 3586, Apr 30, 1999 (accompanying statement of Board

Chairperson Diane Rea). Rea explained that the amendment

was necessary because “offenders who commit their [aggra-

vated murder] crime after 11/1/89 do not go out on parole, they

go out on post-prison supervision.” Id. (emphasis added).

In petitioner’s view, the amendment was clearly

intended to correct an oversight. Moreover, petitioner argues,

Cite as 341 Or App 524 (2025) 543

only her interpretation gives effect to the amendment. If all

aggravated-murder sentences are wholly outside the sen-

tencing guidelines system, such that anyone convicted of

aggravated murder regardless of commission date must be

released onto parole—as the board now contends, contrary

to its chairperson’s position in 1999—the 1999 amendment

to add the “release to post-prison supervision” language to

ORS 163.105(3) was meaningless.

Petitioner’s argument regarding the 1999 amend-

ment is persuasive. Having reviewed all of the amendments

to ORS 163.105 since 1989, we have found no indication that

the 1999 amendment was intended as anything other than

a fix that would apply to all life sentences for aggravated

murder committed after November 1989. In other words,

like petitioner, we can divine no purpose for the amendment

other than to fix an errant omission from the statute, which

serves that purpose only if persons convicted of aggravated

murder after 1989 are subject to release on post-prison

supervision in the event that their life sentences are con-

verted to life with the possibility of release.

C. Aggravated-Murder Sentencing Rules in the Sentencing

Guidelines System

We next examine the rules that were developed by

the Oregon Criminal Justice Council (OCJC), promulgated

by the Oregon Sentencing Guidelines Board (OSGB) in

1988, and approved by the legislature in Oregon Laws 1989,

chapter 790. See State v. Norris, 188 Or App 318, 321, 72 P3d

103, rev den, 336 Or 126 (2003) (summarizing the develop-

ment of the guidelines system). We look to those rules for

two reasons. First, the OCJC was tasked with creating the

rules to implement the sentencing guidelines system, and

the OSGB adopted those rules and provided commentary for

their implementation, so the manner in which those rules

were intended to apply to aggravated murder sentencing is

persuasive evidence of both the intended reach of the sen-

tencing guidelines system and its intended functioning.

Second, that the legislature expressly approved of those

rules, giving them the force of statute, suggests that the leg-

islature agreed with the intended reach and operation of the

sentencing guidelines system as reflected in the rules. On

544 Black v. Board of Parole

that point, it is notable that, when the legislature wanted

to amend the OSGB’s rules, it said so explicitly. See, e.g.,

Or Laws 1989, ch 790, §§ 96, 98, 101 (requiring the OSGB

to amend particular rules in the manner dictated by the

legislature).

We first consider former OAR 253-09-001(1) (Sept 1,

1989), renumbered as OAR 213-009-0001(1) (Mar 8, 1996),

which provides, “If a mandatory prison sentence is required

or authorized by statute, the sentence imposed shall be that

determinate sentence or the sentence under these rules

whichever is longer.” See also ORS 137.637 (1995) (“When a

determinate sentence of imprisonment is required or autho-

rized by statute, the sentence imposed shall be the deter-

minate sentence or the sentence as provided by the rules

of the Oregon Criminal Justice Commission, whichever is

longer.”). Notably, the rule does not mention indeterminate

sentences, which could mean that is it not meant to encom-

pass aggravated-murder sentences, even though the rule

plainly contemplates the existence of statutory sentencing

requirements external to the sentencing guidelines that

nonetheless produce sentences subject to the larger sentenc-

ing guidelines system.

There is compelling evidence, however, that the

omission was not intended to keep aggravated-murder sen-

tences wholly in the realm of the parole matrix system. The

OCJC’s commentary to former OAR 253-05-004 (Sept 1,

1989), renumbered as OAR 213-005-0004 (Mar 8, 1996)—a

rule that we discuss in more detail below—explains that

“[e]xisting statutory law permits the imposition of an inde-

terminate life sentence with a mandatory minimum term”

for murder and aggravated murder, but that “such an inde-

terminate sentence” is “permitted by OAR 253-09-001(1).”

Oregon Sentencing Guidelines Implementation Manual 93

(1989) (Implementation Manual). Thus, despite failing to

explicitly mention statutorily required indeterminate sen-

tences, it appears that the OCJC intended the sentenc-

ing guidelines system to accommodate the aggravated-

murder sentencing scheme, that is, that it understood that

aggravated-murder sentences could still fall under the

umbrella of the sentencing guidelines system despite ORS

Cite as 341 Or App 524 (2025) 545

163.105 overriding many of the system’s default rules. And,

certainly, neither former OAR 253-09-001(1) (Sept 1, 1989)

nor ORS 137.637 (1995) foreclosed that intended operation.

Returning to former OAR 253-05-004 (Sept 1,

1989), it provides the strongest support for petitioner’s posi-

tion because it explicitly provides for a person in petitioner’s

position to be released to PPS:

“(1) The term of post-prison supervision for an offender

serving a life sentence pursuant to ORS 163.105 [(aggra-

vated murder)] or ORS 163.115 [(murder)] shall be for the

remainder of the offender’s life, unless the Board finds

a shorter term appropriate. In no case shall the term of

supervision be less than three years.

“(2) The limit on sanctions for post-prison supervision

violations provided in OAR 253-11-004(3) shall not apply

to offenders on post-prison supervision as provided by this

rule.”

(Emphasis added.) The commentary in the Implementation

Manual explains:

“This rule is intended to avoid any conflict with cur-

rent law as to the supervision of persons convicted of

aggravated murder or murder/felony murder. * * * If such

an offender has been sentenced for a crime committed on or

after November 1, 1989, the offender will be released to post-

prison supervision. This rule describes how post-prison

supervision shall be administered for offenders serving

indeterminate life sentences.”

Implementation Manual at 93 (emphasis added). Because

former OAR 253-05-004 (1989) was approved by the legis-

lature, as previously discussed, it has the force of statute.

State v. Kragt, 368 Or 577, 581, 495 P3d 1233 (2021).

D. Oregon Laws 1989, chapter 790, section 28

We next consider Oregon Laws 1989, chapter 790,

section 28, which is the strongest authority for the board’s

position.

As previously mentioned, Oregon Laws 1989, chap-

ter 790, is “the comprehensive legislation implementing the

sentencing guidelines” system and expressly approving of

546 Black v. Board of Parole

the OSGB’s rules implementing that system. State v. Davis,

315 Or 484, 490, 847 P2d 834 (1993); Or Laws 1989, ch 790,

§ 87 (“The Sixty-fifth Legislative Assembly approves the

sentencing guidelines as developed by the State Sentencing

Guidelines Board * * *.”). It is also the legislative act that

amended ORS 137.010(1) to mandate the application of the

sentencing guidelines system to all “felonies committed on

or after November 1, 1989,” and that amended ORS 144.050

to restrict the board’s parole authority to “offense[s] com-

mitted prior to November 1, 1989.” Or Laws 1989, ch 790,

§§ 6, 25. As such, we presume that the legislature intended

section 28 to work in harmony with the other provisions of

chapter 790 and the rules that it expressly approved. See

Montara Owners Assn. v. La Noue Development, LLC, 357

Or 333, 340, 353 P3d 563 (2015) (“Where parts of a statute

conflict, we attempt to harmonize them in a way that gives

effect to both.”).

Section 28, which is compiled as a note after ORS

144.110, provides that 11 parole-related statutes continue to

apply to offenders convicted of a crime committed prior to

November 1, 1989, or convicted of aggravated murder com-

mitted on any date:

“The provisions of ORS 144.110, 144.120, 144.122,

144.125, 144.130, 144.135, 144.185, 144.223, 144.245,

144.270 and 144.305 apply only to offenders convicted of a

crime committed prior to November 1, 1989, and to offend-

ers convicted of aggravated murder regardless of the date of

the crime.”

(Emphasis added.)

The cited statutes are complex and lengthy, but

they cover matters such as prohibiting the board from

releasing an aggravated murderer on parole “except as pro-

vided in ORS 163.105,” ORS 144.110 (1995)10; allowing the

board to hold an exit interview to determine whether there

are grounds to postpone a person’s scheduled parole release,

ORS 144.125 (1995); requiring the board to allow a prisoner

access to written materials that the board will consider with

10

ORS 144.110 has been amended numerous times since 1995. See Or Laws

1999, ch 782, § 1; Or Laws 2001, ch 104, § 47; Or Laws 2007, ch 717, § 3; Or Laws

2015, ch 820, § 43; Or Laws 2019, ch 635, § 14.

Cite as 341 Or App 524 (2025) 547

respect to release on parole, ORS 144.130 (1995), amended

by Or Laws 1997, ch 825, § 2; requiring the board to state in

writing the basis of its decision after an exit interview, ORS

144.135 (1995); allowing the board to consider various docu-

ments and information, including the prisoner’s parole plan,

in connection with an exit interview, ORS 144.185 (1995),

amended by Or Laws 2019, ch 634, § 26, ORS 144.223 (1995);

requiring the board to release a prisoner onto parole on the

set date, unless the prisoner has a consecutive sentence to

serve, ORS 144.245 (1995); and authorizing the board to

specify and modify parole conditions for a person released

on parole, ORS 144.270 (1995).11

The board argues that section 28 evinces the legis-

lature’s intent to keep aggravated-murder sentences entirely

within the parole matrix system. Although that argument

obviously has some force, we are ultimately unpersuaded,

because we view section 28 as being susceptible to two dif-

ferent constructions, only one of which harmonizes it with

the other statutes and rules already discussed. One con-

struction is that urged by respondents, under which people

convicted of aggravated murder are subject to exactly the

same parole matrix system that existed for all offenders

prior to November 1, 1989. The alternative construction,

which we ultimately conclude is more likely what the legis-

lature intended, is that section 28 excludes application of the

cited statutes to anyone other than offenders who commit-

ted their crimes before the cut-off date in 1989 or who com-

mitted aggravated murder, without meaning to comment on

the particulars of how those statutes apply to the offenders

to whom they can be applied.

Before engaging in the statutory analysis that leads

us to that conclusion, we pause to acknowledge that there is

dicta in existing case law that is premised on the first con-

struction. See, e.g., Forbus, 309 Or App at 305 n 4 (stating

that, under section 28, “the board retains authority to parole

11

ORS 144.270 has been amended numerous times since 1995. See Or Laws

1999, ch 239, § 3; Or Laws 1999, ch 626, § 13; Or Laws 2001, ch 731, §§ 3, 4; Or

Laws 2005, ch 532, § 2; Or Laws 2005, ch 567, § 10; Or Laws 2005, ch 576, § 3; Or

Laws 2005, ch 642, § 3a; Or Laws 2007, ch 71, § 38; Or Laws 2009, ch 595, § 100;

Or Laws 2009, ch 204, § 7; Or Laws 2009, ch 713, § 13; Or Laws 2011, ch 258, § 2;

Or Laws 2011, ch 547, § 31; Or Laws 2019, ch 213, § 30.

548 Black v. Board of Parole

aggravated murderers”); State ex rel Engweiler v. Cook, 197

Or App 32, 34, 103 P3d 1205 (2005), aff’d on other grounds,

340 Or 373, 133 P3d 904 (2006) (describing section 28 as

“providing for parole of incarcerated inmates * * * convicted

of aggravated murder regardless of the date of the crime”

(internal quotation marks omitted)); State v. McLain, 158 Or

App 419, 425, 974 P2d 727 (1999) (citing section 28 to mean

that “the [b]oard has authority to parole offenders who are

serving indeterminate sentences for pre-1989 crimes and

to parole aggravated murderers”). We are hesitant to disre-

gard such repeated statements, but, ultimately, those state-

ments are dicta. See State v. Guzman, 366 Or 18, 28, 455

P3d 485 (2019) (defining dictum as “a statement that is not

necessary to the court’s decision” (internal quotation marks

omitted)). For example, in Forbus, where we said that, under

section 28, “the board retains authority to parole aggravated

murderers,” the actual issue to be decided was whether the

board erred by applying matrix rules that were not in effect

at the time of the petitioner’s crime to determine the length

of his prison term. 309 Or App at 296 n 4, 298. In answer-

ing that question, we held that “the matrix system applies

to the determination of this petitioner’s prison term, even

though he committed his offense in 1994, after the Oregon

Sentencing Guidelines went into effect.”12 Id. at 306. But we

were not called upon to determine whether the petitioner

should have ultimately been released on PPS or parole.

That dicta aside, neither we nor the Supreme Court

has ever actually engaged in statutory construction of sec-

tion 28. Not surprisingly then, neither we nor the Supreme

Court has ever done a fulsome analysis—or any analysis,

beyond a cursory reading of the text of section 28—as to

how that statutory provision interrelates with other statu-

tory provisions as relevant to the question whether a person

sentenced to an indeterminate life sentence for an aggra-

vated murder committed after November 1, 1989, whose

sentence is later converted, should be released on parole

or PPS. The only time that we or the Supreme Court has

12

That holding is untouched by this decision because, as Janowski/Fleming

recognized, ORS 163.105 integrated the parole matrix rules into its operation

for the purpose of determining the length of prison terms for converted life

sentences.

Cite as 341 Or App 524 (2025) 549

addressed whether a specific person convicted of aggravated

murder should be released to parole or PPS is in two of the

Engweiler cases.

In an Engweiler case decided in 2013, the plaintiff

argued that he was eligible for immediate release to PPS,

given his earned-time credits, and was not required to go

through an exit interview. 354 Or at 554, 566. The Supreme

Court rejected his argument about the exit interview—a

result that aligns with our own analysis of the statutes

herein. Compare 341 Or App at 536 (recognizing that “ORS

144.125 (1995) squarely place upon the board the authority to

determine a person’s prison term and release date for aggra-

vated murder”), with Engweiler, 354 Or at 566-68 (holding

that, in Oregon Laws 1989, chapter 790, section 28, the legis-

lature expressly made aggravated-murder sentences subject

to the exit-interview procedure described in ORS 144.125).

As for the plaintiff’s contention that he should be released

on PPS, the court summarily rejected that argument—not

based on a statutory analysis, but simply because the plain-

tiff had “offered no persuasive analysis” as to why the court

should not follow its summary statement in earlier opinions

in his case that his “entitlement, if any, to eventual release

will be to parole.” Id. at 566-67; see generally Beall Transport

Equipment Co. v. Southern Pacific, 186 Or App 696, 700, 64

P3d 1193 (2003), adh’d to as clarified on recons, 187 Or App

472, 68 P3d 259 (2003) (explaining that it is not an appellate

court’s “proper function to make or develop a party’s argu-

ment when that party has not endeavored to do so itself”).

When the plaintiff tried to renew his PPS argument before us

in Engweiler v. Board of Parole, 291 Or App 355, 421 P3d 424,

rev den, 363 Or 599 (2018), we viewed the Supreme Court’s

past statements in prior appeals by the same plaintiff as

controlling. Id. at 357 (“Given the Supreme Court’s explicit

statement that petitioner’s ‘entitlement, if any, to eventual

release will be to parole,’ we reject petitioner’s assertion that

the Supreme Court’s statements on the matter do not control.

Rather, we are bound by the Supreme Court’s decision on the

matter until such time as that court disavows it.”).

Ultimately, the issue before us is sufficiently com-

plex that we feel obliged to meaningfully engage in the

550 Black v. Board of Parole

necessary statutory construction, rather than simply defer

to dicta that, on its face, provides an easy answer, but

which clearly was not the result of actual statutory analysis

(because none was called for). And the parties have squarely

raised and briefed the statutory construction issue.

We start with the text of section 28 and specifically

the phrase “[t]he provisions * * * apply only to.” The use of the

word “only” suggests that the legislature was thinking in

terms of exclusion—removing everything else from the appli-

cation of those statutes—which at least slightly favors constru-

ing section 28 as excluding any application of the cited stat-

utes to offenders other than those identified, without meaning

to provide anything as to how those statutes will be applied

to the offenders to which they can be applied. For example,

by its express terms, the current version of ORS 144.120 does

not apply to offenders sentenced for aggravated murder, so,

even though section 28 allows for ORS 144.120 to be applied

to “offenders convicted of aggravated murder regardless of the

date of the crime,” it does not in fact apply to them.

The legislative history also supports our reading

of section 28. As originally drafted, section 28 provided for

ongoing application of the cited statutes only to offenses

committed before the sentencing guidelines system went

into effect:

“The provisions of [ORS] 144.110, 144.120, 144.122,

144.123, 144.125, 144.130, 144.135, 144.140, 144.185,

144.223, 144.245, 144.270, 144.275 and 144.305 apply only

to offenses committed prior to September 1, 1989.”

Senate Bill (SB) 1073, § 28, A-Engrossed (1989). The OCJC

suggested amending it to include aggravated murder in

response a request from the board. Exhibit A, Senate

Judiciary Committee, SB 1073, May 5, 1989 (recommended

amendments to SB 1073 A-Engrossed). As we explain more

later, it appears that the board had realized that, because

people convicted of aggravated murder would continue to

receive indeterminate life sentences, the board needed to

keep mechanisms in place to determine whether and when

to release such offenders from prison, and none existed in

the new legislation, which was all built around determinate

sentences.

Cite as 341 Or App 524 (2025) 551

As described by the OCJC, amended section 28

“[l]imits the statutory provisions related to the determina-

tion of parole release dates to offenders convicted of aggra-

vated murder or crimes committed prior to November 1,

1989.” Exhibit D, House Committee on the Judiciary,

Subcommittee on Crime and Corrections, SB 1073, June 15,

1989 (bill summary prepared by the OCJC) (emphasis

added). Elsewhere, it explained that the amendment “rec-

ognizes that the current parole function will be retained for

offenders convicted of Aggravated Murder which is excluded

from the guidelines system.” Exhibit A, Senate Committee

on Judiciary, SB 1073, May 5, 1989 (recommended amend-

ments to SB 1073 A-Engrossed).

While the first statement focuses on the release

date, the second statement refers to the parole function more

generally, which would seem to support the board’s current

position. However, given the larger context, we are doubtful

that the OCJC intended its statements to be understood as

going beyond addressing the issue identified by the board—

that, without keeping the parole-release related statutes in

place for offenders convicted of aggravated murder, there

would be no mechanisms to decide whether and when to

release them from prison. What ultimately drives us to

that conclusion is that OCJC is the body that recommended

former OAR 253-05-004 (Sept 1, 1989), the rule requiring

lifetime PPS for aggravated murder sentences, and that its

own Implementation Manual, which post-dates the amend-

ment to section 28, continues to specify that persons sen-

tenced for post-1989 aggravated murders will be released on

PPS. There is simply no other way to reconcile the various

provisions. There is also no indication that section 28 was

intended to upend the default rule that crimes committed

after November 1, 1989, are subject to the sentencing guide-

lines system. See ORS 137.010 (so providing).

As for how the cited parole-related statutes were

intended to apply to offenders convicted of aggravated

murder after November 1, 1989, we acknowledge that the

absence of any mention of PPS in those statutes is a com-

plicating factor in the analysis. There is at least superficial

tension between former OAR 253-05-004 (Sept 1, 1989),

552 Black v. Board of Parole

which explicitly provides for aggravated murderers released

from prison to be released on PPS, and section 28, which

allows those same individuals to be subject to statutes that

were enacted before PPS came into existence, that refer

only to parole, and that have never been amended to refer

to PPS. Most of those statutes address procedures when

someone is being considered for release and, although they

refer to parole, are not unique to parole such that there

would be any difficulty applying them to someone being con-

sidered for release on PPS if that is what the legislature

intended (as we believe it was).13 The one exception is ORS

144.270, which governs the conditions of parole. That stat-

ute cannot be applied to a person released to PPS because

the conditions of PPS are governed by a separate statute,

ORS 144.102. However, as we have already explained, we do

not understand section 28 to mean that every single statute

cited therein must be applied to every single person covered

by section 28. Just as ORS 144.120 is listed in section 28

but does not currently apply to aggravated murders, ORS

144.270 is listed in section 28 but does not apply to persons

released on PPS.

Ultimately, we must harmonize all of the provisions

enacted or approved by the legislature if we can, Montara

Owners Assn., 357 Or at 340, and there is simply no way to

effectuate former OAR 253-05-004 (Sept 1, 1989) under the

board’s reading of section 28, whereas our reading of section

28 harmonizes all of the provisions. We also note that the

result would be no different were we to conclude that the

13

See ORS 144.110 (explaining that the board cannot release a person con-

victed of murder except as provided in ORS 163.105); ORS 144.122 (allowing a

person to request an earlier release date); ORS 144.125 (providing for exit inter-

views); ORS 144.130 (requiring a person to have access to written materials

prior to hearing before the board); ORS 144.135 (requiring the board to issue its

decisions in writing); ORS 144.185 (allowing the board to demand records and

information pertinent to the exit interview); ORS 144.223 (allowing the board to

require a person to undergo a psychological examination prior to release); ORS

144.245 (requiring that, once the board has set a date for release, “the prisoner

shall be released on that date,” except in specified circumstances). Although those

statutes refer only to release on “parole,” we can see no way in which those pro-

cedures are incompatible—as a practical matter—with a person being released

to PPS. For example, ORS 144.125 provides authority for the board to conduct an

exit interview, and it refers to parole. But its requirements and procedures are

simply aimed at determining whether there is a basis to defer the release of a per-

son from custody. Nothing about those requirements or procedures necessarily

require that the person be released to a particular form of supervision.

Cite as 341 Or App 524 (2025) 553

legislature simply failed to consider how section 28 would

function in relation to the rest of Oregon Laws 1989, chap-

ter 790, because, in that event, our best assessment of the

legislative intent on the issue would control and would lead

to the same result. See Angle v. Board of Dentistry, 294 Or

App 470, 479, 431 P3d 447 (2018) (“[W]hen a specific issue is

not addressed clearly in a statute or its legislative history,

we use the broader purpose of the statute as a guide in our

attempt to discern what the legislature would have intended

had it considered it.” (Internal quotation marks omitted.)).

E. Conclusion: Release to PPS

Accordingly, we conclude that offenders convicted of

aggravated murder for crimes committed after November 1,

1989, whose life sentences are converted to life with the pos-

sibility of release, are to be released to lifetime PPS, not

parole, in the event of release. To summarize our reason-

ing: ORS 137.010(1) states the general rule that crimes com-

mitted after November 1, 1989, are subject to the sentenc-

ing guidelines system, and ORS 144.050 limits the board’s

parole authority to pre-1989 felonies. The sentencing guide-

lines system allows for specific statutory sentencing schemes

to override its general rules while still remaining under the

umbrella of the greater sentencing guidelines system. ORS

163.105 is such a statutory override, but it does not over-

ride the default rule that a person sentenced for a post-1989

felony is to be released on PPS. OAR 213-005-0004, a rule

approved by the legislature, explicitly provides that persons

serving an aggravated-murder sentence for a crime commit-

ted after November 1989 will serve a lifetime PPS term.

And nothing in Oregon Laws 1989, chapter 790, section 28,

precludes such a person from being released to PPS; instead,

it allows the board to continue using the 11 parole-related

statutes, as needed, for the purpose of determining whether

and when to release a person from custody.

The board therefore erred in releasing petitioner

onto parole instead of PPS.

In Case No. A181213, reversed and remanded. In

Case Nos. A177739 and A178929, affirmed.