Porter v. Board of Parole

Under ORS 144.125 (1991), “if a release date was scheduled and elapsed without the board first having found a valid reason to postpone release, but the inmate was erroneously not released, later events cannot furnish a basis for postponing release; the inmate is entitled to immediate release.”

Petitioner appealed the decision of the Board of Parole and Post-Prison Supervision (the board) that rescinded his scheduled release date from prison and that, after the release date had passed, reconvened a hearing to extend the release date. Petitioner plead guilty to the aggravated murder of a police officer in July, 1992. ORS 163.095(2)(a)(A). In July 2012, the board a held a required “hearing to determine if the prisoner [was] likely to be rehabilitated.” ORS 163.105(2) (1991). The board set a release date for June 7, 2013. On June 4, 2013, the board summarily “rescinded” and, as a practical consequence, postponed that release date without prior notice or hearing to for the purpose of conducting a secondary psychological exam of the petitioner. The board did so without making one of the three determinations necessary under ORS 144.125(1) (1991) for an extension of a release date. The state argued that the board did not violate administrative rules. The state did not identify another authority permitting it “to rescind a parole release date for the purpose of conducting a psychological exam.” The Court of Appeals held that “if a release date was scheduled and elapsed without the board first having found a valid reason to postpone release, but the inmate was erroneously not released, later events cannot furnish a basis for postponing release; the inmate is entitled to immediate release.” (quoting Rivas v. Persson, 256 Or App 829, 835-36 (2013), rev dismissed, 354 Or 841 (2014) (emphasis in original). Therefore, in this case, the board lacked authority to postpone petitioner’s release date, absent a timely hearing and a timely finding under ORS 144.125 (1991). Reversed and remanded.