State ex rel Walraven v. Dept. of Corrections

ORS 138.160 does not effect a stay on the Department of Corrections’ obligation to prepare and submit a proposed release plan where the Department of Corrections appeals a preliminary order of conditional release under ORS 420A.203.

At age 14, Relator was convicted as an adult of aggravated murder and sentenced to life with a 30-year minimum period of incarceration. After he served approximately half of his sentence, Relator obtained a second look hearing pursuant to ORS 420A.203. The court determined conditional release was appropriate and directed the Department of Corrections (the Department) to prepare and submit a proposed release plan within 45 days, and recommended release should immediately follow the court’s approval of the final release plan. The State appealed the order of conditional release and failed to prepare the proposed release plan within 45 days as directed, contending ORS 138.160 granted an automatic stay pending appeal. Relator filed a petition for a writ of mandamus; the Court issued an alternative writ directing the Department to comply or show cause for not doing so. The Department did not comply and asserted its argument under ORS 138.160. The Court held that ORS 138.160 did not provide for an automatic stay of submitting a proposed release plan within 45 days because the preliminary order of conditional release is not the kind of proceeding to which that statute applies; the purposes and procedures for a second look hearing are different from those for a criminal action governed by the statute; there is no indication the legislature intended for the statute to apply to related proceedings that are not themselves criminal actions; the provisions of ORS chapter 19, not chapter 138, have been held to apply to related proceedings that are not criminal in nature; a preliminary order of conditional release does not have the type of effect ORS 138.160 is intended to stay; the effect of a preliminary order of conditional release is to proceed to the second step of the second look process, not in release of the person, and so the escape clause of ORS 138.160 would produce an inconsistent result; and the statutory deadlines contained in the second look statutes do not vary based on whether an appeal has been taken. Peremptory writ of mandamus to issue; the Department to prepare a proposed release plan.