CUNIO v. BOARD OF PAROLE AND POST PRISON SUPERVISION

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Court of Appeals of Oregon.

Sterling Ray CUNIO, Petitioner, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.

A155898

    Decided: November 01, 2017

Before Armstrong, Presiding Judge, and Hadlock, Chief Judge, and Egan, Judge. Ryan T. O'Connor, Portland, argued the cause for petitioner. With him on the briefs was O'Connor Weber LLP. Matthew J. Lysne, Salem, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

 In 1994, when petitioner was 16 years old, he and a friend kidnapped and murdered two people. Petitioner was waived into adult court and was convicted of multiple crimes, including two counts of aggravated murder. Cunio v. Premo, 284 Or.App. 698, 395 P.3d 25 (2017). The trial court imposed consecutive life sentences on petitioner's two aggravated murder convictions, to be followed by a total of 280 months' incarceration on the other convictions. Id. at 700, 395 P.3d 25. Petitioner has pursued several unsuccessful challenges to that sentence, including through multiple post-conviction proceedings. See id. at 701-02, 395 P.3d 25. Most recently, we affirmed a post-conviction court's 2013 decision granting summary judgment to the state on the ground that petitioner's various statutory and constitutional challenges to his sentence were precluded by the bar on successive petitions because he either had raised, or could have raised, those arguments in earlier post-conviction proceedings. Id. at 708-10, 395 P.3d 25.

In this case, too, petitioner challenges the length of time for which he will be incarcerated, but in a different context. Petitioner focuses not on the terms of the sentence imposed by the sentencing court, but on a 2012 order of the Board of Parole and Post-Prison Supervision establishing petitioner's prison term on the life sentences for aggravated murder. Petitioner contends, among other things, that the board impermissibly excluded evidence related to his conduct in prison and other circumstances in the years following the 1994 crimes. Because we agree with petitioner that the board erroneously excluded that evidence as legally irrelevant to the questions before it, we reverse and remand on that basis. Consequently, we do not reach petitioner's other assignments of error, except to explain, because the issue likely will arise on remand, that the board must address in the first instance the allocation of the burden of proof when an inmate challenges the use of “uncounseled” juvenile adjudications in calculating the inmate's prison term.

I. FACTUAL AND PROCEDURAL BACKGROUND

As a young teenager, petitioner committed multiple acts that would have constituted crimes had he been an adult, including unauthorized use of a motor vehicle  UUMV), theft, criminal mischief, fourth-degree assault, and trespass. By the time petitioner was 16 years old, juvenile-court petitions were pending against him on additional UUMV allegations, as well as allegations of forgery and second-degree robbery. Petitioner then committed the crimes that have led to his lengthy prison sentences; in 1994, he kidnapped, robbed, and murdered two people—an 18-year-old woman and a 21-year-old man. Cunio, 284 Or.App. at 700, 395 P.3d 25. Petitioner was waived into adult court and convicted, following a stipulated facts trial, of two counts of aggravated murder, two counts of first-degree kidnapping, and two counts of first-degree robbery. Id. at 701, 395 P.3d 25.

Under the law then in effect, the trial court imposed life sentences on each of the aggravated murder convictions pursuant to ORS 163.105 (1993) and ordered those sentences to run consecutively. Id. at 701, 395 P.3d 25. On the kidnapping and robbery convictions, the court imposed upward durational departure sentences under the sentencing guidelines, resulting in a total of 280 months' imprisonment for those convictions.1 Id. The court ordered the guidelines sentences to run consecutively to the life sentences on the aggravated murder convictions and, other than the 20-month sentences imposed on each of the two first-degree robbery convictions, see 288 Or.App. at 461 n. 1, ––– P.3d ––––, to each other.

In 1997, while incarcerated, petitioner stabbed a corrections officer and was convicted, pursuant to a guilty plea in 1998, of second-degree assault. For that offense, he was sentenced to 70 months' imprisonment, to be served consecutively to the sentences he already was serving.

In 2011, the Supreme Court addressed an anomalous circumstance related to the life sentences for juveniles—like petitioner—who committed aggravated murder between certain dates in 1989 and 1995, i.e., that, although those inmates' life sentences entitled them to the possibility of parole, “the board had no rules governing parole decisions for them.” State ex rel. Engweiler v. Felton, 350 Or. 592, 599,  260 P.3d 448 (2011); see State ex rel. Engweiler v. Cook, 340 Or. 373, 381-82, 133 P.3d 904 (2006) (describing the “small class of inmates who,” for a few years after the sentencing guidelines went into effect on November 1, 1989, “continued to receive indeterminate sentences—those inmates who, like petitioner, committed aggravated murder but who were juveniles at the time of their crimes”). The Supreme Court ultimately concluded that, under the pertinent versions of ORS 144.120(1)(a), those juveniles with aggravated murder convictions had been entitled to hearings at which the board would either set initial parole release dates, or (in certain circumstances) could decline to do so. State ex rel. Engweiler v. Felton, 350 Or. at 627, 260 P.3d 448.

In light of that Supreme Court decision, the board conducted a prison-term hearing for petitioner in October 2012. Applying the matrix and guidelines applicable to adult offenders at the time petitioner committed the aggravated murders, the board determined that petitioner's matrix range was “576 to life.” 2 Accordingly, the board established a 576-month prison term and set a parole release date on petitioner's life sentences of April 19, 2042, “after which petitioner would begin serving the 280 months to which he was sentenced on his kidnapping and robbery convictions.” Cunio, 284 Or.App. at 702, 395 P.3d 25.

Petitioner timely sought administrative review. Among other things, petitioner argued that the board had, in essence, impermissibly required that petitioner remain incarcerated for life, had erred in calculating his matrix range, and had erred in precluding petitioner from introducing mitigating evidence related to events that occurred during the years that had passed since he murdered his victims, that is, to petitioner's “circumstances after his convictions.” The board rejected each of those arguments and,  in an October 2013 order, denied petitioner relief. Petitioner timely sought judicial review in this court, where he has reiterated many of the arguments he made to the board.

II. ANALYSIS

Because it is dispositive, we begin our analysis with petitioner's third assignment of error, in which he challenges the board's decision not to consider certain proffered evidence at his October 2012 prison-term hearing. Before we begin that discussion, however, we pause to briefly describe the prison-term hearing process as it relates to petitioner.

At the time of the aggravated murders, ORS 144.120(1)(a) (1993) 3 set out timelines under which the parole board was required to conduct hearings for certain inmates, upon their admission to a state correctional institution, to determine each inmate's “initial date of release on parole,” unless the board chose not to set a parole release date under the limited circumstances in which it was allowed to do that. See ORS 144.120(4).4 An inmate's initial parole release date, sometimes referred to as the “projected parole release date,” established the minimum length of time that the inmate would remain incarcerated before being released on parole, based on matrix ranges of imprisonment—and variations to those ranges for aggravating and mitigating circumstances—that the legislature directed the board to establish by rule. ORS 144.120(2); ORS 144.780; ORS 144.785; see Gordon v. Board of Parole, 343 Or. 618, 621-22, 175 P.3d 461 (2007) (describing process). Thus, the ORS 144.120(1)(a) hearings became known as “prison-term hearings.”

As previously mentioned, in State ex rel. Engweiler v. Felton, 350 Or. at 627, 260 P.3d 448, the Supreme Court concluded  that ORS 144.120(1)(a) applied to juvenile aggravated murderers—reasoning that an exemption added in 1991 referred to the timing requirement only 5 —and, therefore, the board was required to conduct parole hearings under ORS 144.120(1)(a) for juvenile aggravated murderers. Subsequently, the board amended OAR 255-032-0005 to provide the following:

“(4) Inmates, who were juveniles and waived to adult court pursuant to ORS 419C.340 through 419C.364, and were under the age of 17 years at the time of their crime(s), and were convicted of Aggravated Murder, per ORS 163.095, and whose crimes were committed after October 31, 1989 and prior to April 1, 1995, shall receive a prison term hearing. At the hearing, the Board shall set a projected parole release date, in accordance with the guidelines and matrix that apply with respect to the date of the crime.

“(5) The Board will apply the applicable procedural rules under OAR divisions 30 and 35, in effect at the time of the hearing, for the conduct of the hearing.”

Accordingly, in October 2012, the board held a prison-term hearing to determine petitioner's projected parole release date on his aggravated murder sentences, applying the guidelines and matrix in effect for adult offenders at the time he committed those crimes.

With that background in mind, we return our focus to petitioner's third assignment of error. At the October 2012 hearing, petitioner sought to introduce a written report by a clinical psychologist, Dr. Zorich, who evaluated petitioner shortly before the hearing. Petitioner also submitted a parole-release plan and letters that described his activities in prison and advocated for his release. At the beginning of the hearing, the board's vice chair asserted that, because the sole purpose of the hearing was “establishing a prison term on [petitioner's] convictions for aggravated murder,” the board would consider only “evidence that's relevant to [petitioner's] circumstances at the time of the crime.” The  vice chair further asserted that what petitioner had “done for good or for ill since that time [was] not relevant in this type of hearing.” Accordingly, the board excluded from its consideration petitioner's parole plan and other documents submitted by petitioner's lawyer “to the extent that those documents *** relate to [petitioner's] current functioning or *** prison adjustment,” concluding that “they're not relevant to the subject matter of this hearing.” The board admitted the first seven pages of the psychologist's report—which addressed petitioner's childhood and the murders—as “potentially relevant to [petitioner's] circumstances at the time of the crime.” The board excluded the remainder of the report—which discussed subsequent events in petitioner's life—from consideration, apparently based on its decision to consider only evidence related to petitioner's circumstances at the time of the murders. The vice chair also explained that, for the same reason, it would disregard information about petitioner's 1997 assault conviction while in prison.

In his administrative review request, petitioner argued that the board should not have declined to consider his proffered evidence about events and circumstances after 1995, including his parole-release plan and the excluded portions of the psychologist's report. The board rejected that argument, explaining again that it viewed the evidence as irrelevant:

“You argue you should have been allowed to present evidence of your conduct in prison at the hearing. Prison Term Hearings are governed by OAR 255-032-0035 and OAR 255 Division 35. The sole issue at your prison term hearing was establishing a prison term on your convictions of aggravated murder. Evidence of your conduct in prison is not relevant to the question before the Board, and the Board did not err in limiting the information to evidence relevant to your circumstances at the time of crime/sentencing.”

On judicial review, petitioner contends that the board erred “when it refused to consider evidence of any circumstances that post-dated the crime and trial court proceedings, including excluding mitigating evidence concerning petitioner's release plan, a current psychological evaluation,  and other evidence of his rehabilitation.” Petitioner contends that, as in Calderon-Pacheco v. Board of Parole, 309 Or. 454, 458-59, 788 P.2d 1001 (1990), the board “must consider mitigating evidence submitted by an inmate during a prison term hearing even if that evidence is unrelated to the circumstances surrounding the criminal offenses.” He further contends that the board's own rules required it to consider “relevant” evidence and, in particular, his current psychological evaluation, citing OAR 255-030-0032.6 That rule requires the board to consider “[t]he information set forth in OAR 255-030-0035,” which, in turn, specifies, among other things, the admissibility of “[m]aterial submitted by the inmate or representative relating to the calculation of the prison term”; “[c]urrent psychological/psychiatric evaluations”; and “[o]ther relevant material selected at the Board's discretion,” as well as “[o]ther relevant evidence concerning the inmate that is available.” Petitioner argues that evidence of his rehabilitation and his parole release plan was also relevant to the board's decision whether to “unsum” his consecutive prison terms. See OAR 255-035-0021(5) (“To determine the unified range for inmates with consecutive sentences which involve a crime listed in section (4) of this rule [which includes aggravated murder], the Board shall establish the matrix range for each crime by using the inmate's history/risk score pursuant to OAR 255-005-0005, Exhibit B and the applicable crime category rationale. The unified range shall be the sum of the ranges established under this section.”); OAR 255-035-0022(2) (“The duration of imprisonment for consecutive sentences may be less than the sum of the terms under OAR 255-035-0021, if the Board finds by a majority vote that consecutive sentences are not appropriate penalties for the criminal offenses involved and  that the combined terms of imprisonment are not necessary to protect community security.”).7

The board responds that its decision to “limit the time period of relevant documents” was not inconsistent with any board statute or rule, or the holding of Calderon-Pacheco, and was, in fact, consistent with other board rules. The board also contends that exclusion of portions of Zorich's psychological evaluation of petitioner was not inconsistent with the board's rules and, in any event, was harmless. As to petitioner's “summing” argument under OAR 255-035-0022(2), the board contends that it is “unpreserved and unexhausted” and therefore we cannot consider it. Alternatively, the board contends that that claim lacks merit: Its exclusion of petitioner's evidence did not conflict with the board's summing rule because “an inmate's institutional conduct and current psychological status becomes germane during an exit interview—and not during a prison term hearing (unless the board decides to deny setting a parole release date).”

We agree with petitioner that Calderon-Pacheco governs the outcome in this case. In Calderon-Pacheco, the board held a prison term hearing under ORS 144.120 to set the petitioner's initial parole release date on his convictions for sexual abuse and attempted rape. 309 Or. at 456, 788 P.2d 1001. In mitigation, the petitioner offered letters and an affidavit indicating “that [he] was a hard worker, that he was trustworthy in a work setting, and that a job was available for him in the future at a nursery.” Id. The board rejected that evidence on the basis that it was “ ‘not directly related to the circumstances surrounding the crime.’ ” Id. at 457, 788 P.2d 1001. The Supreme Court reversed and remanded, concluding that the board's refusal to admit the evidence was inconsistent with board rules. Id. at 460, 788 P.2d 1001. See ORS 183.482 (8)(b)(B) (court shall remand if it finds the agency's exercise of discretion to be “inconsistent with an agency rule”). The court observed that, under those rules, a prisoner's time in  prison could vary from the guidelines ranges based on the board's finding of aggravation or mitigation. Id. at 457, 788 P.2d 1001 (citing former OAR 255-35-035 (May 31, 1985)). And, not all of the factors of aggravation and mitigation listed in the board rules were “ ‘directly related’ to the offense or to the circumstances surrounding the crime”; indeed, the rules specifically allowed for consideration of “other” mitigating factors. Id. at 457-58, 788 P.2d 1001 (citing Exhibit E-2 to former OAR 255-35-035, which included an item designated as “O,” defined to mean “Other”). Thus, the court concluded, the board excluded mitigation evidence in a manner inconsistent with Exhibit E-2, not following its own rules concerning admissible evidence. Id. at 460, 788 P.2d 1001.8

The same is true here. Although former OAR 255-35-035 was deleted in 1988, at the time of petitioner's aggravated murders, the board's rules similarly allowed the board to depart from the appropriate parole matrix range upon making a finding of aggravation or mitigation. See OAR 255-035-0016(1) (“The Board may depart from the appropriate parole matrix range only upon making a specific finding that there is aggravation or mitigation which justifies departure from the range pursuant to OAR 255-005-0005, Exhibit E (Parts 1 and 2).”).9 And, as in Calderon-Pacheco, Exhibits E-I and E-2 listed aggravating and mitigating factors that are not strictly limited—temporally or otherwise—to the circumstances surrounding the crime.10 For example, one mitigating factor to be considered is a “[s]ustained effort to make restitution or reparation,” Exhibit E-2 B (Oct. 9, 1992); conversely, the “[a]bility to make restitution  or reparation and fail[ure] to do so” is an aggravating factor, Exhibit E-1 D (Oct. 9, 1992). And, importantly, as in Calderon-Pacheco, Exhibit E-2 specifically provided for the board to consider “[o]ther” mitigating factors. Exhibit E-2 L (Oct. 9, 1992). Thus, this case appears to be indistinguishable from Calderon-Pacheco in that the board again failed to follow its own rules—specifically, Exhibit E-2—in excluding the mitigating evidence offered by petitioner.

Nonetheless, the board argues that Calderon-Pacheco is inapposite because, here, the board did not “categorically exclude” the evidence on the basis that it was not “directly related” to the offense, but, rather, because the evidence was “germane to a parole release determination, and not the setting of a parole release date.” For the same reason, the board contends that the exclusion was not inconsistent with Exhibit E—that is, in the board's view, it did not act inconsistently with Exhibit E because limiting the evidence was consistent with other board rules, specifically, those that allow evidence of the sort excluded here to be considered in making a parole release determination.11

That reasoning, presented to us on judicial review, cannot be squared with the way that the board described and explained its exclusion of the evidence during the administrative proceedings. Regardless of its motivation, the board did categorically exclude petitioner's evidence that was not directly related to the circumstances of the offense, just as the board did in Calderon-Pacheco. The board was clear: At the outset of the hearing, the vice chair stated explicitly that the board would consider only “evidence that's relevant to [petitioner's] circumstances at the time of the crime.” Similarly, with regard to the psychological evaluation, the vice chair ruled that only the first seven pages of the psychologist's report—which addressed petitioner's childhood and  the murders—would be considered because that portion was “potentially relevant to [petitioner's] circumstances at the time of the crime.” In its Administrative Review Response, the board rejected petitioner's argument that exclusion of the evidence was error, concluding:

“Prison Term Hearings are governed by OAR 255-032-0035 and OAR 255 Division 35. The sole issue at your prison term hearing was establishing a prison term on your convictions of aggravated murder. Evidence of your conduct in prison is not relevant to the question before the Board, and the Board did not err in limiting the information to evidence relevant to your circumstances at the time of crime/sentencing.”

(Emphasis added.)

As in Calderon-Pacheco, the board's exclusion of the evidence was thus inconsistent with OAR chapter 255, division 35—specifically, Exhibit E-2—which does not limit available mitigating factors to those “relevant to [the] circumstances at the time of crime/sentencing” and, in item L, specifically allows for the consideration of “[o]ther” mitigating factors offered by petitioner.12 That other rules provide for board consideration of this type of evidence at later stages does not, as the board contends, negate that inconsistency.

Moreover, the board's exclusion of much of Zorich's psychological examination of petitioner was also inconsistent with its rules regarding admissible evidence: OAR 255-030-0032, in conjunction with OAR 255-030-0035(1)(i), explicitly makes admissible in a prison-term hearing “[c]urrent psychological/psychiatric evaluations.” (Emphasis added.) The board does not refute that proposition per se, but contends that that evidence is relevant in a prison-term hearing only for the purpose of deciding whether to deny parole. See ORS 144.120(4) (described at 288 Or.App. at 463 n. 4, –––P.3d ––––); OAR 255-035-0030(1)(c) (board may deny parole, among other reasons, if the inmate's “record includes a psychiatric  or psychological diagnosis of a present severe emotional disturbance such as to constitute a danger to the health and safety of the community”). Because, here, the board did not deny petitioner a parole-release date, the board argues, it did not err in excluding the evidence or, in any event, the error was harmless.

We disagree. First, the board's rules—OAR 255-030-0032, in conjunction with OAR 255-030-0035(1)(i)—specify that “[c]urrent psychological/psychiatric evaluations” are admissible at a prison-term hearing; they do not limit the admissibility of that evidence in the manner suggested by the board. Second, as petitioner points out, the board is authorized to depart from the presumptive matrix range under the rules based on mitigating factors. See ORS 144.785 (board rules “shall define types of circumstances as aggravating or mitigating and shall set the maximum variation [from the ranges of duration of imprisonment to be served for felony offenses prior to release on parole] permitted”); OAR 255-035-016(1) (“The board may depart from the appropriate parole matrix range only upon making a specific finding that there is aggravation or mitigation which justifies departure from the range pursuant to OAR 255-005-0005, Exhibit E (Parts 1 and 2).”). Zorich's psychological evaluation of petitioner, which included mitigating evidence about petitioner's current mental health and risk for recidivism, was probative of that question and could have influenced the board's decision whether to reduce the otherwise applicable matrix range. Thus, the board's exclusion of the evidence was not harmless.13

In sum, because the board acted inconsistently with its rules in excluding petitioner's evidence, we reverse the board's order and remand for a new prison-term hearing, at which, consistent with its rules, the board must consider petitioner's proffered evidence in setting a prison term and projected parole release date for petitioner. See ORS 183.482(8)(b)(B) (remand required if agency's exercise  of discretion is “[i]nconsistent with an agency rule”); ORS 144.335(3) (standard of review in ORS 183.482(8) applicable to board orders). As we discuss in more detail below, that conclusion obviates the need to address most of petitioner's remaining assignments of error. However, we briefly turn to petitioner's combined first and second assignments of error because the issue they raise likely will arise on remand.

In his first and second assignments of error, petitioner contends that the board erred in calculating his prison term for the two aggravated murder sentences using “uncounseled” juvenile adjudications to increase his criminal history/risk assessment score.14 In calculating petitioner's criminal history, the board found that petitioner had four or more prior felony convictions, relying on petitioner's 1992 juvenile adjudication for what would have been three felony counts of UUMV and one felony count of first-degree criminal mischief if committed by an adult.15

Petitioner objected to the use of those juvenile adjudications to increase his criminal history/risk assessment score because, he argued, he did not have counsel for those adjudications, nor did he waive counsel, and, under In re Gault, 387 U.S. 1, 36, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), State v. Riggins, 180 Or.App. 525, 44 P.3d 615 (2002), and the board's rules, uncounseled juvenile adjudications in which the offender did not validly waive the right to counsel may not be counted.16 In support of that argument, petitioner submitted documents from his juvenile adjudications that,  he asserted, demonstrated that he lacked counsel, and an affidavit, in which he averred that he was not represented by counsel nor did he validly waive counsel for his juvenile adjudications. The board rejected petitioner's arguments, adhered to its prior calculation of petitioner's criminal history, and affirmed that conclusion on administrative review.

On judicial review, the parties agree that the Due Process Clause of the Fourteenth Amendment to the United States Constitution prohibits the use of an uncounseled juvenile adjudication to enhance an inmate's criminal history/risk assessment score if the inmate did not have counsel or validly waive that right. The parties also appear to agree that Exhibit B-II, which sets out the instructions for determining an inmate's history/risk score, codifies that principle for purposes of applying the matrix. The exhibit provides, as relevant:

“Do not count felony convictions if the documents clearly show that the defendant neither had counsel nor waived counsel for a particular conviction.[[17] Count convictions where the offender chooses to represent himself.

“If an offender challenges counting an offense on the basis that it was uncounseled, consider the circumstances prior to granting the relief. In weighing the evidence, recent convictions and serious convictions increase the burden on the offender to produce evidence to overcome the presumption that the crime was counseled. If the conviction record is not clear and several years have elapsed, the conviction would be more susceptible to challenge that it was uncounseled.”

Exhibit B-II (A)7.

The parties disagree, however, about how the burden of proof is allocated in this context, and the rule does not specify. Nor does the board's order reveal exactly how the board assessed that burden in this case. Compare Riggins, 180 Or.App. at 531, 44 P.3d 615 (defendant who challenges use of juvenile adjudication in determining criminal history score under  sentencing guidelines bears burden of demonstrating prima facie that it was uncounseled; prima facie burden is satisfied if the adjudication record “either affirmatively demonstrates that defendant was not represented or the record is silent on the point”; burden then shifts to state to demonstrate that youth was aware of right to counsel and intentionally relinquished that right (internal quotation marks omitted)) with State v. Probst, 339 Or. 612, 628-29, 124 P.3d 1237 (2005) (in challenging validity of predicate conviction to elevate DUII to felony on ground that it was uncounseled, defendant bears burden of persuasion). Although the board appears to have placed some burden on petitioner, as it stated that petitioner “did not effectively demonstrate” that he lacked counsel, the board did not explain whether it was requiring petitioner only to establish a prima facie case (per Riggins ) or whether it believed that petitioner also bore the burden of persuasion (per Probst ). On remand, the board will have an opportunity to explain how it views the proper allocation of the burden of proof when an inmate challenges the use of a prior adjudication to increase the inmate's criminal history/risk score for purposes of applying the matrix.18

Petitioner's remaining assignments of error—that is, his combined fourth, fifth, sixth, and seventh assignments of error—all appear to be predicated on petitioner's  contention that the board's assessment of a 576 month-to-life prison term effectively created a de facto life sentence for petitioner in violation of statutory and constitutional law.19 As he explains in his introduction to those combined assignments of error, under Oregon statute and the federal and state constitutions, “the board—as the state entity with authority over how long petitioner spends in prison—must employ a process that offers petitioner a realistic possibility of release during his life if he establishes his rehabilitation”; however, here, the board “imposed a prison term that effectively guarantees that petitioner will die in prison.” He points out that, “if the board's action stands, then petitioner will be released from the penalty imposed in the 1995 judgment in 2067 when he is 88 years old,” given that he presumably will begin serving the 280 months of consecutive guidelines sentences after his projected release date of 2042 on the aggravated murder sentences. Because, on remand, the board must hold a new prison-term hearing and recalculate petitioner's projected parole release date, it would be premature for us to analyze those arguments at this time. In other words, until we know petitioner's actual prison term, we have no way of assessing whether the rules violate the law in the manner petitioner has alleged.

Reversed and remanded.

FOOTNOTES

1.   The guidelines sentences totaled 300 months; however, the 20-month sentences imposed on each of the two first-degree robbery convictions were ordered to be served concurrently, resulting in an effective 280-month term of imprisonment.

2.   Specifically, the board found that petitioner's history risk score was “2” and that his crime category was “8” (subcategory rationale of “stranger to stranger” applied). The board also found aggravation under item “I” for “verified instances of repetitive assaultive conduct, prior conviction for assault IV,” and item “J” for “more than three trust violations in the last five years as it relates to item ‘E’ of the matrix computation, seven probation violations.” And, the board found mitigation under item “E”, “evidence of reduced responsibility, age 16,” but rejected petitioner's offer of mitigation under item “J”, “crimes were part of a ‘crime spree’ and that the spree is not indicative of a persistent criminal orientation.”

3.   ORS 144.120(1)(a) continues to set out those timelines; however, the text of the statute has been amended over the years. Unless otherwise noted, we refer to the 1993 version of ORS 144.120 in this opinion.

4.   At the time of petitioner's crimes, ORS 144.120(4) (1993) provided, as it does today, that the board may choose not to set a parole date“in the case of a prisoner whose offense included particularly violent or otherwise dangerous criminal conduct or whose offense was preceded by two or more convictions for a Class A or Class B felony or whose record includes a psychiatric or psychological diagnosis of severe emotional disturbance such as to constitute a danger to the health or safety of the community[.]”

5.   ORS 144.120(1)(a) (1991) provided, as relevant, that, “[f]or those prisoners sentenced to a term of imprisonment for life ***, with the exception of those sentenced for aggravated murder, the board shall conduct the parole hearing, and shall set the initial release date, within one year following admission of the prisoner to the institution.” (Emphasis added.)

6.   Petitioner apparently quotes the version of OAR 255-030-0032 and OAR 255-030-0035 (to which it refers) in effect when he committed the aggravated murders. The board, in response, apparently relies on the version of the rules in effect at the time of the hearing, noting OAR 255-032-0005(5), which, again, provides that “[t]he Board will apply the applicable procedural rules under OAR divisions 30 and 35, in effect at the time of the hearing, for the conduct of the hearing.” For purposes of our analysis, the textual differences between the two versions are immaterial; thus, we need not resolve that discrepancy—that is, we need not decide whether these rules are “procedural.” For ease of reference only, we quote the September 18, 2012, version of those rules in effect at the time of the hearing.

7.   Because OAR 255-035-0021 and OAR 255-035-0022 have not been substantively amended since before petitioner committed the crimes at issue, we need not address whether those rules are procedural for purposes of OAR 255-032-0005(5). See 288 Or.App. at 466 n. 6, ––– P.3d ––––. We cite the current version, with its current numbering convention.

8.   The court also noted that ORS 144.780(3), which requires the board to “give primary weight to the seriousness of the prisoner's present offense and criminal history” in establishing the matrix ranges, was not “a mandate to exclude other considerations.” Calderon-Pacheco, 309 Or. at 458, 788 P.2d 1001.

9.   The rule is in effect today, and the text has not been substantively amended since January 13, 1992. Thus, we quote the current rule. Another rule—OAR 255-035-0013—required, and still requires, the board, during a prison term hearing, to make findings of fact regarding, among other things, “[w]hen there is a variation from the range, the reason for the variation”; “[a]ggravation (Exhibit E-1)”; and “[m]itigation (Exhibit E-2).” OAR 255-035-0013(5)-(7). The board's final order was required to contain those findings. OAR 255-30-055(2) (Oct. 29, 1993).

10.   See OAR 255-035-0006 (incorporating exhibits, including “Exhibits E-I” and “E-II,” into the parole matrix guidelines).

11.   In particular, the board refers to what is known as an “exit interview,” a hearing at which the board considers, among other things, whether to postpone a parole release date. See ORS 144.125 (authorizing the board to postpone an inmate's scheduled release date in specified circumstances); ORS 144.098 (providing for board review of inmate's release plan); OAR 255-060-0006(1) (implementing ORS 144.098 and ORS 144.125; board may conduct an exit interview to review, among other things, the inmate's release plan, psychiatric/psychological reports, and conduct while in prison).

12.   At oral argument, the board suggested that, although it used the word “relevant” in its order, the board essentially decided that the evidence was “unhelpful” to its decision, a discretionary call that the board was permitted to make. That is not borne out by the record. As the portions quoted above demonstrate, the board repeatedly concluded that the evidence was irrelevant—that is, that it could not have any bearing on the question of petitioner's parole release date.

13.   Given our ultimate conclusion that petitioner is entitled to a new prison-term hearing, we need not address whether petitioner was required to, or did, properly “exhaust and preserve” his argument that Zorich's evaluation was also relevant and highly probative of the board's decision whether to “unsum” his consecutive prison terms under OAR 255-035-0022(2).

14.   See OAR 255-035-0013 (board required to make finding of inmate's “history/risk assessment score (Exhibit B)” at prison-term hearing); Exhibit B-I (criminal history/risk assessment matrix); Exhibit B-II (coding instructions for determining an inmate's history/risk score). All references to Exhibits B-I and B-II in this opinion are to the October 9, 1992, version of those exhibits, which remain in effect today.

15.   As noted above, the board established petitioner's criminal history/risk score as “2” based, in part, on the board's calculation of his criminal history using the four contested juvenile adjudications. According to petitioner, without those adjudications, his total criminal history/risk score would have been “5”, which equated to an aggregate matrix range of 456 to 576 months.

16.   On appeal, petitioner also contends that the board erred in using his juvenile adjudication for fourth-degree assault as an “aggravating factor” for the same reason—that it was “uncounseled.” As we explain below with respect to the use of his other juvenile adjudications, the board will need to confront that issue on remand in any event.

17.   Juvenile adjudications are counted as “convictions” under the rule if the offense behavior would have been a felony if committed by an adult and the juvenile was 16 or older; adjudications occurring prior to age 16 are counted as “convictions” if incarceration resulted. Exhibit B-II (A)2.

18.   Although we need not resolve the issue given our conclusion that the board must conduct a new prison-term hearing for petitioner, we note that the board's decision appears to be in tension with the governing legal principles. On administrative review, the board concluded that petitioner “did not effectively demonstrate that [he was] uncounseled,” pointing to evidence indicating that petitioner was appointed counsel on March 13, 1992, when his probation for the challenged adjudications was revoked. However, nothing in the record indicates that petitioner had counsel at the constitutionally relevant time—that is, on January 23, 1992, when he was adjudicated within the jurisdiction of the court based on his admissions to those offenses. See In re Gault, 387 U.S. at 41, 87 S.Ct. 1428 (“We conclude that the Due Process Clause of the Fourteenth Amendment requires that in respect of proceedings to determine delinquency which may result in commitment to an institution in which the juvenile's freedom is curtailed, the child and his parents must be notified of the child's right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child.” (Emphasis added.)). On judicial review, the board does not contend that petitioner had (or had waived) counsel at the time when delinquency was determined—that is, when petitioner was adjudicated within the jurisdiction of the court for the relevant charges—rather the board suggests that the triggering event is when petitioner was “placed in incarceration/detention as a juvenile.” (Emphasis added.) The board provides no legal authority for that proposition—which appears contrary to Gault—and we are not aware of any.

19.   Specifically, petitioner contends that the board's action violated ORS 161.620 (1994) (providing, in part, that “a sentence imposed upon any person waived from the juvenile court *** shall not include any sentence of *** life imprisonment without the possibility of release or parole nor imposition of any mandatory minimum sentence”); the “cruel and unusual punishment” clauses of the state and federal constitutions (Or Const., Art. I, § 16; U.S. Const., Amend. VIII); the Due Process Clause of the United States Constitution (U.S. Const., Amend. XIV); Article I, section 15, of the Oregon Constitution as in effect on petitioner's 1994 crime commission date (providing that “[l]aws for the punishment of crime shall be founded on the principles of reformation, and not of vindictive justice”); and the ex post facto clauses of the state and federal constitutions (Or. Const., Art. I, sec. § 21; U.S. Const., Art. I, § 10).

HADLOCK, C. J.

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