Barrett v. Board of Parole

No. 297 May 8, 2024 463

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

JACOB BARRETT,

Petitioner,

v.

BOARD OF PAROLE AND

POST-PRISON SUPERVISION,

Respondent.

Board of Parole and Post-Prison Supervision

A177386

Submitted June 20, 2023.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and Neil F. Byl, Deputy Public Defender, Office of

Public Defense Services, filed the brief for petitioner. Jacob

Barrett filed the supplemental brief pro se.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Jeff J. Payne, Assistant Attorney

General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Powers, Judge, and

Hellman, Judge.

ORTEGA, P. J.

Affirmed.

464 Barrett v. Board of Parole

ORTEGA, P. J.

In 1994, petitioner and two others robbed a conve-

nience store at gunpoint, and petitioner shot and killed the

store clerk. State v. Barrett, 331 Or 27, 10 P3d 901 (2000),

overruled in part by Martinez v. Cain, 336 Or 136, 458 P3d

670 (2020). The trial court sentenced petitioner pursuant to

ORS 163.105 (1993) to life in prison with a 30-year mini-

mum term of incarceration for aggravated murder, imposed

a durational-departure sentence of 72 months under the

sentencing guidelines for first-degree robbery, and ordered

those sentences to be served consecutively. In May 2021, the

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

held a murder-review hearing and found that petitioner was

likely to be rehabilitated within a reasonable period of time.

The board converted his sentence for aggravated murder

to life with the possibility of parole, set his prison term for

168 months, and set his projected parole release date for

January 5, 2022.

Petitioner sought administrative review of the

board’s decision, arguing, among other things, that the

board was required to “sum and/or unsum” his consecutive

prison terms for aggravated murder and first-degree rob-

bery pursuant to ORS 144.079 and ORS 144.783 and the

board’s applicable rules. According to petitioner, had the

board “summed” those consecutive terms, it then had dis-

cretion to “unsum” them, “effectively treating them as con-

current to one another.” The board concluded that it lacked

authority to “unsum” petitioner’s prison terms and denied

relief. Petitioner seeks judicial review and renews his con-

tention that the board was required to “sum and/or unsum

his prison terms.” We affirm.

“ ‘Summing’ refers to the board’s practice of adding

consecutive prison terms together; ‘unsumming’ refers to

its determination that consecutive sentences are not appro-

priate, thus allowing terms to run concurrently.” Jenkins v.

Amsberry, 288 Or App 693, 694 n 1, 404 P3d 1150 (2017).

The board’s authority to “sum and/or unsum” petitioner’s

prison terms is governed by ORS 144.783 (1993) and ORS

Cite as 332 Or App 463 (2024) 465

144.079 (1993), which cross-reference each other.1 ORS

144.783 (1993) provided:

“(1) When a prisoner is sentenced to two or more con-

secutive terms of imprisonment, the duration of the term

of imprisonment shall be the sum of the terms set by the

State Board of Parole and Post-Prison Supervision pur-

suant to the ranges established for the offenses, subject to

ORS 144.079, and subject to the variations established pur-

suant to ORS 144.785(1).

“(2) The duration of imprisonment pursuant to con-

secutive sentences may be less than the sum of the terms

under subsection (1) of this section if the board finds, by

affirmative vote of a majority of its members that con-

secutive sentences are not appropriate penalties for the

criminal offenses involved and that the combined terms

of imprisonment are not necessary to protect community

security.”

(Emphasis added.) In turn, ORS 144.079 (1993) provided, in

pertinent part:

“(1)(a) If a prisoner is sentenced to terms of imprison-

ment that are consecutive to one another and result from

crimes committed during the period before the prisoner’s

first initial parole hearing, * * * the total term resulting

from the crimes committed * * * shall be determined by the

State Board of Parole and Post-Prison Supervision as fol-

lows, except as provided in subsection (2) of this section, and

the total terms so determined shall then be summed as

provided in ORS 144.783(1).

“* * * * *

“(2) The method established by this section for deter-

mining, where applicable, the total term resulting from the

summing of consecutive sentences shall apply only if none

of the crimes involved is:

“(a) Murder, as defined in ORS 163.115 or any aggra-

vated form thereof.”

(Emphases added.)

1

We apply the statutes that were in effect at the time petitioner committed

his offenses. See Janowski/Fleming v. Board of Parole, 349 Or 432, 435, 245 P3d

1270 (2010) (applying the statutes and administrative rules in effect when the

petitioners committed their crimes). For that reason, petitioner’s pro se argument

regarding the 1987 version of ORS 144.079 is inapposite.

466 Barrett v. Board of Parole

Under ORS 144.783(1) (1993), the board must set

the “duration of the term of imprisonment” of consecutive

prison terms “subject to ORS 144.079.” The board’s authority

to sum consecutive prison terms is therefore, at minimum,

“affected by” or “modified by” ORS 144.079. See Vasquez v.

Double Press Mfg., Inc., 364 Or 609, 621, 437 P3d 1107 (2019)

(explaining that the ordinary meaning of “subject to” can

have the narrow meaning of “authorized by” or “under” but

can also have a broader meaning of “affected by” or “mod-

ified by”). And the plain terms of ORS 144.079(2)(a) (1993)

provide that the board has authority to “sum” consecutive

prison terms “only if none” of the terms is for the crime of

aggravated murder. Cf. Plane v. Board of Parole, 114 Or App

60, 63, 834 P2d 549 (1992) (“ORS 144.079 applies * * * only

when none of a prisoner’s consecutive sentences is listed in

ORS 144.079(2). ‘None’ means none—not ‘some.’ ” (Emphasis

in original.)). Further, ORS 144.783(2) (1993) plainly pro-

vides that the board has authority to “unsum” consecutive

prison terms—that is, to set the total duration of impris-

onment to less than the “summed” consecutive terms of

imprisonment—only after it has first summed them. It fol-

lows that when the board lacks authority to “sum” prison

terms, it necessarily lacks the authority to “unsum” them.

Here, one of petitioner’s two prison terms is for

the crime of aggravated murder. The board therefore lacks

authority to “sum” his consecutive prison terms. And because

the board lacks authority to “sum” petitioner’s aggravated

murder prison term with his first-degree robbery prison

term, it also necessarily lacks authority to “unsum” those

terms.2

Affirmed.

2

Because we conclude that the board lacks authority to “sum and/or

unsum” petitioner’s prison terms under ORS 144.079 (1993) and ORS 144.783

(1993), we need not address the board’s argument that it lacks authority to do

so under ORS 144.050, given that petitioner’s first-degree robbery sentence is a

guidelines sentence.

Our disposition also obviates the need to address petitioner’s argument that

the board should have exercised its discretion to “unsum” his prison terms, given

that, in his view, his first-degree robbery conviction would merge with his aggra-

vated murder conviction under Martinez v. Cain, 366 Or 136, 458 P3d 670 (2020).

We therefore express no opinion on the merits of that argument.