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Oregon Bulletin

April 1, 2012

Board of Parole and Post-Prison Supervision, Chapter 255

Rule Caption: Amends rules and exhibits governing procedures for setting prison terms for qualified aggravated murderers.

Adm. Order No.: PAR 1-2012

Filed with Sec. of State: 3-13-2012

Certified to be Effective: 3-13-12

Notice Publication Date: 2-1-2012

Rules Amended: 255-032-0005, 255-032-0037

Rules Repealed: 255-032-0011

Subject: Division 32 rules govern procedures related to persons convicted of aggravated murder under ORS 163.105. Division 35 rules and related exhibits govern procedures related to setting a prison term. Recent Oregon Supreme Court decisions necessitate changes in the Board’s rules:

 (1) In Janowski/Fleming v. Board of Parole, 349 Or 432 (2010), the Board was directed to apply the “matrix system” in effect at the time the crimes were committed in order to set a prison term for adults convicted of aggravated murder who had been found likely to be rehabilitated within a reasonable period of time under ORS 163.105. Exhibit A-I is amended to add crime severity ratings to aggravated murder. Exhibit A-II is amended to restore the subcategory rationale for aggravated murder, including Category 8 (stranger to stranger; cruelty to victim; prior conviction of murder or manslaughter; evidence of significant planning or preparation), and Category 7 (all other cases of aggravated murder). Both of these changes are required in order to allow the Board to establish a matrix range for persons convicted of aggravated murder.

 (2) In State ex rel Engweiler v. Felton, 350 Or 592 (2011), the court concluded that the Board exceeded its statutory authority when it promulgated rules requiring five juvenile aggravated murderers to undergo the intermediate review process of a murder review hearing before the Board makes parole release decisions regarding them. OAR 255-032-005 is adopted and OAR 255-032-0011 is deleted to comply with this decision.

Rules Coordinator: Shawna Harnden—(503) 945-0913

255-032-0005

Prison Term Hearing to Be Held

(1) An adult person convicted of Aggravated Murder under ORS 163.095 shall receive a hearing within one year of sentencing. A person convicted of Murder under ORS 163.115 that was committed on or after June 30, 1995, and who was sentenced to life with a twenty-five (25) year minimum shall receive a hearing within one year of sentencing. At the hearing the Board shall set a review date congruent with the minimum terms set forth in OAR 255-032-0010 rather than a parole release date. In lieu of holding a hearing, the Board may determine the prison term/murder review date by administrative file pass.

(2) Adult persons sentenced to death or life without the possibility of release or parole shall not receive a hearing.

(3) Adult persons sentenced to life with a twenty (20) or thirty (30) year minimum for aggravated murder shall receive a prison term hearing pursuant to ORS 144.120 if they also have a sentence to the Department of Corrections’ custody for a crime other than aggravated murder.

(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.

Stat. Auth.: ORS 144.120, 163.095, 163.115, 419C.340 & 419C.364
Stats. Implemented: ORS 163.105
Hist.: 2PB 8-1985, f. & ef. 5-31-85; PAR 4-1989, f. & ef. 11-1-89; PAR 1-1991, f. & cert. ef. 1-16-91; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 4-1997, f. 3-11-97, cert. ef. 3-14-97; PAR 4-1999, f. & cert. ef. 5-18-99; PAR 2-2000, f. 1-3-00, cert. ef. 1-4-00; PAR 1-2003, f. & cert. ef. 5-13-03; PAR 4-2009(Temp), f. & cert. ef. 9-29-09 thru 3-28-10; PAR 3-2010, f. & cert. ef. 3-26-10; PAR 1-2012, f. & cert. ef. 3-13-12

255-032-0037

Prison Term Hearings for Inmates Found Likely to be Rehabilitated

(1) The Board shall hold a prison term hearing for an adult inmate convicted of murder as defined in ORS 163.115 or Aggravated Murder as defined in ORS 163.095 committed on or before October 22, 1999, whose sentence has been converted to life with the possibility of parole based on the Board’s determination that the inmate is likely to be rehabilitated within a reasonable period of time.

(2) The Board will conduct the hearing under the provisions of Division 030 of the Board’s rules in place at the time the hearing is conducted, and will establish the prison term or take other action authorized under the law and administrative rules that apply with respect to the date of the crime.

Stat. Auth.: ORS 144.120; Other Auth.: OAR 255-030-0012(1982), 255-032-0005(1)(1985), 255-032-0005(1)(1982)(1985), Janowski/Flemimg v. Board of Parole, 349 OR 432(2010), Severy/Wilson v. Board of Parole, 349 OR 461(2010)
Stats. Implemented: ORS 144.120,
Hist.: PAR 7-2011, f. & cert. ef. 11-30-11; PAR 1-2012, f. & cert. ef. 3-13-12

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2011.

2.) Copyright 2012 Oregon Secretary of State: Terms and Conditions of Use

Oregon Secretary of State • 136 State Capitol • Salem, OR 97310-0722
Phone: (503) 986-1523 • Fax: (503) 986-1616 • oregon.sos@state.or.us

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