Gurule v. Board of Parole

798 May 20, 2026 No. 449

This is a nonprecedential memorandum opinion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

PHILLIP GURULE,

Petitioner,

v.

BOARD OF PAROLE AND POST-PRISON SUPERVISION,

Respondent.

Board of Parole and Post-Prison Supervision

A185302

Submitted March 18, 2026.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and Laura A. Frikert, Deputy Public Defender,

Oregon Public Defense Commission, filed the brief for

appellant.

Dan Rayfield, Attorney General, Benjamin Gutman,

Interim Deputy Attorney General, and Jeff J. Payne,

Assistant Attorney General, filed the brief for respondent.

Before Tookey, Presiding Judge, Jacquot, Judge, and

Kistler, Senior Judge.

JACQUOT, J.

Vacated and remanded.

Nonprecedential Memo Op: 349 Or App 798 (2026) 799

JACQUOT, J.

Petitioner seeks judicial review of a final agency

order and raises two assignments of error.1 Petitioner

argues that “[t]he board erred when it denied him rerelease

on parole and converted [his] sentence of life with the possi-

bility of parole to life without the possibility of parole,” and

that the board erroneously applied “substantive rules to

[his] case that were not in effect at the time of the offense.”

The state responds that some of petitioner’s arguments are

unpreserved, and that at any rate, the board did not err

because the board did not “convert” petitioner’s sentence in

its decision, and even if the board applied a later-enacted

rule, the order does not violate the ex post facto prohibition.

Reviewing the board’s actions “for legal error, substantial

evidence, and substantial reason,” Bell v. Board of Parole,

283 Or App 711, 713, 391 P3d 907, rev den, 361 Or 645 (2017);

ORS 183.482(8)(a), we vacate and remand.2

Whether the board applied the correct legal stan-

dards is reviewed for legal error. See Lehman v. Board of

Parole, 333 Or App 417, 424, 552 P3d 718 (2024), rev dis-

missed as improvidently allowed, unpublished order in case

number S071263 (Jan 7, 2025) (reviewing whether the

board’s order was supported by adequate legal authority).

The substantive law in effect at the time a petitioner com-

mitted the offense of conviction governs the board’s review.

Black v. Board of Parole, 341 Or App 524, 531, 575 P3d 148,

rev den, 374 Or 523 (2025); Barrett v. Board of Parole, 332 Or

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

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

should be sufficient to demonstrate the existence of a rational

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

Roseburg City Firefighters, 292 Or 266, 272, 639 P2d 90

(1981). If the board’s order contains “mere conclusions, with-

out adequate explanation for judicial review, we have found

substantial reason to be lacking.” King v. Board of Parole,

308 Or App 716, 720, 482 P3d 110 (2021).

1

Petitioner filed a supplemental pro se opening brief which does not add

assignments of error beyond those argued by his counsel.

2

Because we vacate and remand for lack of substantial evidence or rea-

son, we do not reach petitioner’s ex post facto argument or his other due process

arguments.

800 Gurule v. Board of Parole

Defendant was sentenced to an indeterminate life

sentence with the possibility of parole and a required mini-

mum 20 years of incarceration for an offense he committed

in 1987. In 2014, the board released him on parole. In 2023,

while petitioner was on parole, he was taken into custody

for additional offenses, convicted, and sentenced to a prison

term. Consequently, the board revoked petitioner’s parole

and held a future disposition hearing. Following the hear-

ing, the board denied petitioner rerelease and issued a board

action form (BAF) that stated that the “result of the denial

of rerelease results in a true life sentence.” Petitioner timely

requested administrative review, and the board issued an

administrative review response (ARR 2) denying relief.3

We begin by addressing preservation and exhaustion

of administrative remedies. Tuckenberry v. Board of Parole,

365 Or 640, 646, 451 P3d 227 (2019). The state argues that

petitioner failed to exhaust or preserve an argument that

the board applied later-enacted law, and we disagree. In its

BAF, the board did not specify the legal authority it relied

on to support its decisions. Thus, petitioner had no opportu-

nity to identify—or challenge—the board’s reliance on a spe-

cific statute or administrative rule. Nonetheless, petitioner,

unrepresented at the time of his request for administrative

review, included how “[t]he board does not have the author-

ity to convert [his] sentence,” because “[he is] not sentenced

to life without parole” in his appeal to the board. That state-

ment provided more than a general description of his con-

cerns to the board and his administrative appeal request

put the board on notice that it did not have the authority

to impose a true life sentence. Not only did petitioner suffi-

ciently communicate a challenge to the board’s legal author-

ity, petitioner’s request for judicial review “raises important

issues of public interest concerning the board’s authority

* * *.” See Tuckenberry, 365 Or at 654-55.

The board had authority to revoke petitioner’s

parole. When the board finds that a parolee “has violated

one or more conditions of parole and the evidence offered in

mitigation does not excuse or justify the violation, the board

3

The BAF and ARR are both considered part of the final order for purposes

of review. Jenkins v. Board of Parole, 356 Or 186, 207, 35 P3d 828 (2014).

Nonprecedential Memo Op: 349 Or App 798 (2026) 801

may revoke parole.” ORS 144.345 (1977), amended by Or

Laws 1991, ch 836, § 3. The board, however, failed to sup-

port the balance of its order with sufficient evidence or legal

authority for its decision.

A board order that is not supported by substantive

legal authority in effect at the time petitioner committed the

offense of conviction is not supported by substantial reason.

See Lehman, 333 Or App at 424 (reversing when “[t]he board

has not pointed to any other source of law, either below or

on judicial review, that would constrain its authority” in the

manner it concluded its authority was constrained).

Given the specific contours of this case, the board’s

failure to cite administrative rules or statutes in effect in

1987, at the time of petitioner’s offense of conviction, ren-

dered the order unsupported by substantial reason. See

Acuna v. SAIF, 346 Or App 29, 30-31, 584 P3d 322 (2025)

(“[T]he board’s explanation of how the reasonableness fac-

tors led to the fee award did not amount to substantial rea-

son to support its decision[.]”). We reach that conclusion, in

part, because it is irrefutable that the board relied on at

least one authority that did not exist in 1987. In its adminis-

trative review response, the board cited OAR 255-75-[0]079,

an administrative rule first enacted in 1989.4 Although the

board did not specify the year of statutes or administrative

rules it referenced, review of the record suggests that the

board considered currently operative legal authority. For

example, in ARR 2, the board quoted OAR 255-075-0096(1)

as providing that “upon a finding of aggravation pursuant

to * * * Exhibit H” the board may deny rerelease. (Ellipsis

in ARR 2). However, the equivalent predecessor administra-

tive rule effective in 1987, former OAR 255-75-096 (1985),

makes no reference to “aggravation” or “Exhibit H.”5

4

OAR 255-75-[0]079 has been amended numerous times between 1989 and

now. ARR 2 cites language from the currently operative version of the rule.

5

Former OAR 255-75-096 (1985) provides in full:

“(1) The Board may deny reparole consideration and require the parole

violator to serve to the statutory good time date. This action requires the

affirmative vote of at least four voting members.

“(2) In cases where setting a parole violator within the guidelines set

forth in 255-75-090 would require the parole violator to serve to the end of

the sentence, four votes are not required.”

802 Gurule v. Board of Parole

In 1987, upon a finding of probable cause that a

parolee violated one or more conditions of their parole, the

board had discretionary authority to “revoke parole,” and

“require that the parole violator serve the remaining bal-

ance of the sentence as provided by law.” ORS 144.343(2)

(1987), amended by Or Laws 1989, ch 790, § 42a; Or Laws

1991, ch 836, § 2; Or Laws 1993, ch 581, § 3; Or Laws 1997,

ch 313, § 12; Or Laws 2009, ch 178, § 30; Or Laws 2010,

ch 89, § 13; see also ORS 144.345 (1977), amended by Or

Laws 1991, ch 836, § 3 (providing authority to “revoke

parole”). The board does not explain or cite legal authority

regarding the meaning of the phrase “serve the remaining

balance of the sentence as provided by law” in the case of a

petitioner sentenced to an indeterminate life sentence with

the possibility of parole. That supports our determination

that the board’s order is not supported by substantial rea-

son. See, e.g., Spurger v. SAIF, 266 Or App 183, 194-95, 337

P3d 883 (2014) (“[T]he [Worker’s Comp] board has failed to

provide an adequate explanation of what it considers ‘sig-

nificantly limited’ to mean and, thus, [we] conclude that the

board’s order is not supported by substantial reason.”).

The BAF provides, in part: “The result of the denial

of rerelease results in a true life sentence.” Nonetheless,

the board argues that it did not “convert” petitioner’s sen-

tence when it ordered him reincarcerated after revoking

his parole. As we understand the state’s argument, the

board regards use of the phrase “true life sentence” simply

to mean petitioner is required to serve the remaining bal-

ance of his original sentence. However, the Oregon Supreme

Court has recognized that the phrase “true life sentence” is

not interchangeable with a life sentence with the possibility

of parole; rather, a true life sentence is synonymous to “a

sentence of life without the possibility of parole[.]” State v.

Link, 367 Or 625, 633, 644, 482 P3d 28, (2021) (internal quo-

tation marks and citation omitted; emphasis added)). The

state’s argument fails to address the distinction between a

life sentence with the possibility of parole and a life sentence

without the possibility of parole.6 Despite the board’s asser-

6

We note that under the statutes governing petitioner’s offense of conviction,

life without the possibility of parole was not a permissible sentence. See ORS

163.115 (1985), amended by Or Laws 1989, ch 985, § 1; Or Laws 1993, ch 664, § 1;

Nonprecedential Memo Op: 349 Or App 798 (2026) 803

tion that denying petitioner rerelease necessarily “results

in a true life sentence,” without a scheduled parole review

hearing, the board provided no authority for that proposi-

tion.7 (Emphasis added).

Even so, the board did not provide a sufficient

explanation of its authority to render petitioner ineligible

for future parole review, deny petitioner’s request for parole

review, or substitute a “true life sentence” in place of peti-

tioner’s original sentence. See Acuna, 346 Or App at 30-33

(reversing when an agency’s order was not supported by sub-

stantial reason because it was lacking a clear path of rea-

soning from fact finding to conclusions of law).

Vacated and remanded.

Or Laws 1995, ch 421, § 3; Or Laws 1995, ch 657, § 1; Or Laws 1997, ch 850, § 2;

Or Laws 1999, ch 782, § 4; Or Laws 2007, ch 717, § 2; Or Laws 2009, ch 660, § 7;

Or Laws 2009, ch 785, § 1; Or Laws 2011, ch 291, § 1; Or Laws 2015, ch 820, § 46;

Or Laws 2019, ch 634, § 28; Or Laws 2019, ch 635, § 4.

7

In fact, in more than one instance, the board has scheduled a parole review

hearing after denial of rerelease. Murphy v. Board of Parole, 243 Or App 242, 243,

259 P3d 97 (2011), rev den, 351 Or 545 (2012) (the petitioner was sentenced to life

with the possibility of parole, and sought judicial review challenging a span of

four and a half years between his future disposition hearing and his scheduled

parole review hearing); Himes v. Board of Parole, 221 Or App 386, 388-89, 190

P3d 466, rev den, 345 Or 417 (2008) (the petitioner was sentenced to 70 years,

and sought judicial review challenging a span of 29 and a half years between his

future disposition hearing and his scheduled parole review). Thus, denial of rere-

lease does not necessarily result in any particular sentence imposition, despite

the board’s assertion in the BAF to the contrary.

On appeal, the state argues that Murphy supports the board’s order. The

board did not address Murphy (or any case law) in its order. In Murphy, 243 Or

App at 243-44, we held that the board did not fail to adopt rules and that the

board did not err by setting the petitioner’s rerelease date four years after his

future disposition hearing. We determine that the board’s order does not con-

tain sufficient evidence or analysis for us to review whether and to what extent

Murphy applies to the board’s order. “It is essential that an agency articulate in a

contested case the rational connection between the facts and the legal conclusion

it draws from them.” Spurger, 266 Or App at 189 (internal quotation marks and

citation omitted).