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Oregon Appellate Ct - Feb 15, 2017

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by: Sara Werboff • February 20, 2017 • no comments

Parole - Board Erred by Relying on Second Psychological Evaluation to Justify Earlier Decision Deferring Release

Petitioner's parole release date initially was set for 2012. In preparation for that date, petitioner underwent a psychological evaluation which was generally positive. The Board held an exit interview, after which the Board concluded that petitioner suffered from a present severe emotional disturbance (PSED) and postponed petitioner's release until 2016. That decision was based solely on the evaluation. Petitioner sought review. After petitioner's 2012 release date lapsed, the Board, on its own motion, reopened the order for reconsideration and ordered petitioner to undergo a second evaluation. The Board thereafter explained that it ordered the second evaluation because it determined the first evaluation was too inconclusive either way, and that now, relying on the second evaluation, it was adhering to its original decision to postpone release.

The court concludes that it was error for the Board to use the second evaluation to supplement its reasoning for postponing the release date. To postpone a release date, the Board must establish that a valid statutory reason for postponement exists prior to the release date. The Board's finding of such a reason is only valid if it is supported by substantial evidence. The evidence that the Board relies on must have existed and must have been sufficient prior to the release date. The Board did not simply reopen its prior order to provide a more detailed explanation of its earlier decision but it reopened the evidentiary record to justify its prior decision with new evidence.

Jones v. Board of Parole and Post-Prison Supervision, 283 Or App 650 (2017) (Ortega, P.J.)

Sufficiency of Evidence - Sufficient Evidence that Defendant Recklessly Caused Death of Another Person

In this second-degree manslaughter case, the court concludes that the evidence was sufficient to convict defendant of causing another's death by driving. Defendant was coming down off of a methamphetamine binge, fell asleep while driving, and crashed into and killed another person. The court concludes that there was "ample circumstantial evidence" that defendant was aware of and consciously disregarded his fatigue. Defendant was driving erratically before the crash and admitted to several people after the crash that he was really tired because he had been up all night. Additionally, there was evidence that defendant had taken drugs before the crash and that he was aware of the drugs' effects. A rational factfinder could infer that defendant knew he was having trouble staying awake well before the crash and that defendant was aware that he was driving on roads where other cars were being driven.

State v. Stuart, 283 Or App 672 (2017) (Egan, J.)

Parole - Board's Factual Findings Not Supported by Substantial Evidence

The court reverses three of the Board's factual findings in support of its conclusion, following a murder review hearing, that petitioner had not demonstrated that he was likely to be rehabilitated in a reasonable period of time. First, the Board concluded that petitioner had not worked while incarcerated. However, the factual record reveals that petitioner did work, albeit infrequently because he was house in administrative segregation for much of his term. Second, the Board concluded that petitioner "lacks a sense of indebtedness to his fellow citizens and Oregon taxpayers" because petitioner has financial resources available but has not repaid the cost of his defense and the cost of his incarceration. However, the evidence shows that petitioner thought that the Board would decide petitioner's liability for defense costs at the time of his release. Additionally, there was no evidence presented that petitioner was aware of any mechanism to reimburse the state during his incarceration. Third, the Board concluded that petitioner is still involved in "an adventure-seeking, risk-taking lifestyle." However, that finding was based on petitioner's cooperation with law enforcement while incarcerated and his intervention in a fight to help protect a corrections officer. Although the conduct was risky, it does not permit the inference that the Board drew. Instead, it was just as likely that the conduct represented petitioner's efforts to redeem himself.

King v. Board of Parole and Post-Prison Supervision, 283 Or App 689 (2017) (Lagesen, J.)

Juvenile Dependency - Juvenile Court Lacked Authority to Order DHS to Place Children with Grandparent

The court rejects parents and children's claims of error, holding that there was sufficient evidence that children were endangered and that the juvenile court properly concluded that it lacked authority to order DHS to place the children with their great-grandmother. Although the juvenile court, under ORS 419B.331, may take children under the protective supervision of the court and then give legal custody to great-grandmother, that was not parents' argument below. Instead, parents argued that even if the juvenile court placed the children in DHS custody, under ORS 419B.337(1), it could still order DHS to place the children with great-grandmother. The court concludes that the legislature di dnot intend to confer such authority on the juvenile court. Instead, DHS has the authority to determine the placement.

DHS v. S.E.K.H./J.K.H., 283 Or App 703 (2017) (Lagesen, J.)

Parole - Board's Decision to Deny Parole was Based on Substantial Evidence

The court rejects petitioner's argument that the Board's decision deny parole consideration was not based on substantial evidence because some of the "clinical impressions" documented in petitioner's psychiatric report from the time of sentencing were no longer present at the time of the parole consideration hearing. The court concludes that the Board was not required to limit its inquiry to the current status of the "clinical impressions" presented to the sentencing court, instead, the Board was required to consider whether petitioner continued to suffer from a mental disorder that satisfies the terms of the dangerous-offender statute. Before petitioner's parole consideration hearing, petitioner underwent a psychological evaluation which indicated he had a mental or emotional disturbance that made him a danger to the community and the "condition which made him dangerous is not in remission." Petitioner argued that "the condition which made him dangerous" referred back to the impressions presented at sentencing, several of which were in remission or not present at the time of the parole hearing.

The court concludes that the legislature intended "the condition which made the prisoner dangerous is absent or in remission" to mean that the prisoner no longer suffers from the mental disorder that satisfies the terms of the dangerous offender statute. Here, there was substantial evidence to support that finding.

Bell v. Board of Parole and Post-Prison Supervision, 283 Or App 711 (2017) (Garrett, J.)

Per Curiam - Multiple Sex Abuse Convictions Merged

Under State v. Nelson, 282 Or App 427 (2016), guilty verdicts for sex abuse counts merged because they arose from the same conduct or criminal activity and because the acts were not separated by a sufficient pause.

State v. Phelps, 283 Or App 723 (2017) (per curiam)

Per Curiam - Trial Court Plainly Erred in Imposing Court-Appointed Attorney Fees

The court accepts the state's concession that the trial court erred in imposing the "relatively de minimus" $200 attorney fee award.

State v. Brockway, 283 Or App 726 (2017) (per curiam)