Opinion

Williams v. Board of Parole

98 Or. App. 716
780 P.2d 793
1989 Ore. App. LEXIS 1482

Court: Court of Appeals of Oregon
Filed: Oct 11, 1989
Status: Published
Author: Graber
On the bench: Graber, Riggs, Edmonds
Cited by: 15 cases
Authority: More cited than 91.4%

The opinion

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GRABER, P. J.

Petitioner seeks review of a final order of the Board of Parole setting his release date. ORS 144.335. He contends that, in overriding one minimum sentence and sustaining another, the Board applied new rules that took effect after his convictions, contrary to the

ex post facto

provisions of the Oregon

and federal

constitutions. We affirm.

In 1986, the trial court convicted petitioner of rape and burglary and sentenced him to 20 years in prison, with a minimum sentence of 10 years for each offense. The sentences were to run consecutively. Under the rules then in effect,

when a court imposed consecutive sentences, the Board had to consider the minimum sentences as a unit and sustain or override all of them; it could not override one minimum sentence and sustain another.

Hill v. Board of Parole,

85 Or App 215 , 735 P2d 1301 (1987);

Roof v. Board of Parole,

85 Or App 188 , 736 P2d 193 (1987).

The Board amended OAR 255-35-022 and OAR 255-35-023 in 1987, in response to

Hill

and

Roof .

The Board

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deleted the second sentence of

former

OAR 255-35-022(2), which is italicized in note 3,

supra,

and added subsection (3) to OAR 255-35-023:

“When there are consecutive minimum sentences, and the Board finds that the combined mínimums are not appropriate penalties for the criminal offenses involved, and are not necessary to protect community security, the Board, by four concurring votes, may override one or more of the judicially imposed mínimums and set a prison term which is less than the sum of the minimum terms.”

Therefore, when a court imposes consecutive minimum sentences, the rules no longer prohibit the Board from overriding one minimum sentence and sustaining another.

The Board reconsidered petitioner’s release date in 1988, because it had previously mistakenly treated the minimum sentences as concurrent, instead of consecutive.

It overrode one 120-month minimum sentence, finding that “the minimum term is not an appropriate penalty for the criminal offense and the minimum term is not necessary to protect the public.” It concurred with the other minimum, finding “the minimum term an appropriate sanction for the criminal conduct and necessary for the protection of the public * * *.”

We first consider whether the Board’s rules are “laws” within the meaning of the relevant constitutional provisions. No Oregon appellate court has expressly decided whether an

ex post facto

analysis applies to administrative rules. In

Perkey v. Psychiatric Security Review Board,

65 Or App 259, 262 , 670 P2d 1061 (1983), we defined

ex post facto

legislation as that which

“makes criminal an act not criminal when done, makes an act a greater crime than it was when it was committed, imposes a greater punishment than that in effect at the time of the offense or permits a conviction upon lesser or different evidence than was required at the time the offense was committed.”

That is substantially the same definition as the Supreme Court used in

Colder v. Bull,

3 US (3 Dall) 386, 390, 1 L Ed 648 (1798). The Oregon and federal constitutional provisions are worded similarly. United States Supreme Court cases are

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instructive in considering the scope of the

ex post facto

prohibition in the Oregon Constitution.

Ross v. Oregon,

227 US 150, 162-163 , 33 S Ct 220 , 57 L Ed 458 (1913), the Court stated that it had uniformly regarded the

ex post facto

provision of the federal constitution

“as reaching every form in which the legislative power of a state is exerted, whether it be a constitution, a constitutional amendment, an enactment of the legislature, a by-law or ordinance of a municipal corporation,

or a regulation or order of some other instrumentality of the state exercising delegated legislative authority”

(Emphasis supplied.)

The reasoning of

Ross

applies to Board rules, because the Board derives its rulemaking authority from statutes.

See

ORS 144.050; ORS 144.780; ORS 144.110(2)(a). Moreover, through its rules governing release dates, the Board affects the amount of freedom or punishment that a prisoner in fact receives.

See Warden v. Marrero,

417 US 653, 663 , 94 S Ct 2532 , 41 L Ed 2d 383 (1974);

Harris v. Board of Parole,

288 Or 495, 503 , 605 P2d 1181 (1980). The constitution prohibits

ex post facto

laws that “[impose] a greater punishment than that in effect at the time of the offense * * *.”

Perkey v. Psychiatric Security Review Board, supra,

65 Or App at 262 ;