The opinion
WARREN, J.,
dissenting.
I dissent because I do not agree that ORS 144.785(1) authorizes the Board to adopt a rule permitting it to set a parole release date exceeding the maximum variations permitted by the matrix.
ORS 144.785(1) clearly requires the Board to adopt rules that “* * * define the types of circumstances as *299 aggravating or mitigating and * * * set the maximum variation permitted.” As the majority recognizes, two purposes of ORS 144.785(1) are to “*** safeguard against arbitrary and inconsistent sentences for similar criminal conduct” and to “structure” the Parole Board’s discretion. While the Parole Board’s discretion was not intended to be eliminated, it was to be confined within the limits set by Board rule. The last sentence of OAR 255-35-025(2)(b), which allows the Board to exceed the maximum variations permitted, is beyond the legislative delegation of rule-making authority and subverts those two purposes of the act. Under the majority opinion, there is no limit to the Board’s discretion. The Board’s discretion is not structured but is totally unfettered by any guidelines; there is no safeguard against arbitrary and inconsistent sentences. The majority says “* * * the statute does not require that the Board determine [set] in advance the maximum variations permitted from the matrix range.” (Emphasis in original.) 56 Or App at 298. On the contrary, that is precisely what the statute does require. Despite what the majority says, Moore v. Ore. St. Bd. of Parole, 54 Or App 369 , 635 P2d 3 (1981), does not support the result the majority reaches. In Moore , we held only that the Board may consider aggravating factors other than those listed in its rules. I do not question that. What I do question is its authority to use unlisted factors to set a parole release date beyond any maximum variation permitted by the rules adopted in the matrix range. Because ORS 144.785(1) requires the Board to adopt rules setting the upper limit of variations permitted, it follows that its rule authorizing it to exceed the upper limit is beyond the authority of the Board to make. It makes no difference that the rule requires more affirmative votes to exceed the maximum or that the vote here was unanimous.
For these reasons, I respectfully dissent.