Oregon Appellate Ct - Oct. 14, 2015

by: Abassos, Alarson and Cmaloney • October 14, 2015 • no comments

For Parole purposes, a Vulnerable Victim Need Only Be Vulnerable - The Vulnerability Need Not Have Been Exploited

• The parole board is entitled to re-determine the eligibility dates for parole after being directed by the Oregon Supreme Court to “conduct a hearing, using whatever procedures it deems appropriate, to set each prisoner’s release date according to the matrix in effect when he committed his crime”. The fact that the board had a hearing and called it a "prison term hearing" (normally only allowed once) did not change the fact that the board was following the direction of the Supreme Court. "The board's authority stemmed from the Supreme Court's remand instructions".
• A victim can be "vulnerable" for the purpose of the Parole Board's aggravating factor C solely due to being 74 years old. This is true, even though the victim would not vulnerable under the similar aggravating factor in the sentencing guidelines. To be a vulnerable victim for parole purposes, the vulnerability need not have been exploited.
• The parole board with only 3 of 5 members may apply two upward departure variations, assuming the decisions are unanimous.

Severy v Board of Parole and PPS, 274 Or App 330 (2015).

Preservation - Post-Conviction Relief - Requesting Remand for a New Trial Does Not Preserve the Remedy of a Delayed Direct Appeal

Where defendant requested a remedy of a new trial from the post-conviction court (due to his trial lawyer's failure to advise him of his appellate rights), he did not preserve the remedy of a delayed direct appeal. Because he never requested a delayed appeal or mentioned that he was entitled to one, he did not preserve such a claim for review. Lambert v Premo, 274 Or App 380 (2015).