Opinion
CA A41615; SC S33897
Argued and submitted June 3, 1987,
affirmed August 4, 1987, reconsideration denied October 20, 1987
In Banc
On review from the Court of Appeals.
Judicial review from order of the Board of Parole. 84 Or. App. 563, 735 P.2d 28 (1987).
Lawrence E. Hall, Deputy Public Defender, Salem, argued the cause for petitioner on review. On the petition for review was Gary D. Babcock, Public Defender, Salem.
J. Scott McAlister, Assistant Attorney General, Salem, argued the cause for respondent on review. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
PER CURIAM
The decisions of the Board of Parole and the Court of Appeals are affirmed.
Gillette, J., filed an opinion concurring in part and dissenting in part, joined by Linde, J.
Petitioner was convicted for arson in the first degree and was sentenced to a 10-year term of imprisonment with a 30-month minimum sentence.
At petitioner's prison term hearing, the Board of Parole (Board) established a history/risk score of 8 under crime category 5 with a matrix range of 24 to 36 months, but sustained the 30-month minimum and set petitioner's release date at March 12, 1988.
Petitioner appealed from the final order of the Board dated August 5, 1986. The Court of Appeals affirmed from the bench.
Petitioner seeks review in this court, complaining that the Board erred in not giving reasons for sustaining the 30-month minimum sentence. We attach the Board Action Form (Appendix I), which reflects that the entire panel agreed the 30-month minimum term was appropriate for this man, who burned down his mother's home, totally destroying it and its contents and causing $56,337 in damages. The Board voted to sustain the minimum sentence and set a one-year period of supervision on parole because of the nature of the offense. The Board is not required to state further details for its decision. Anderson v. Board of Parole, 303 Or. 618, 740 P.2d 760 (1987).
This petitioner's other complaint is that the Board failed to consider a factor in mitigation. He contends that he would have received a better history/risk score under the matrix if he had been credited with not having an admitted or documented use of intoxicants within three years. Petitioner told the board that his main defense to the arson charge was that he was too intoxicated to know what he was doing. The admission constituted evidence of current alcohol abuse. The Board also found that petitioner has a prior driving under the influence of intoxicants conviction, for which he received probation. He violated his probation. He has a further conviction of driving while suspended and driving under the influence of intoxicants; he has received alcohol treatment in Seattle, Washington; and he admitted to the presentence reporter for this conviction that he continues to drink but he seldom drinks alcohol more than one day in a row because it makes him sick with a bad hangover. He admits that he is not sure if he has an alcohol abuse problem. The Board concluded that he did have an alcohol problem and recommended that when he was paroled that he abstain from the use of intoxicants.
The Board did not err in finding the prisoner had a documented alcohol abuse problem. Further, the Board did not err in sustaining this prisoner's 30-month minimum sentence.
The decision of the Court of Appeals is affirmed.
OREGON BOARD OF PAROLE BOARD ACTION FORM
BAKER, JOSEPH ANTHONY 04/10/1986 08/12/1948 4465561 49725 09/13/1985 OSP 05/13/1992 09/12/1995 164.3252 1 1 2 2 0 8 5 24 36 08/05/1986 PT S 30 03/12/1988 L H HJ
________________________ ____________________ ________________________ NAME DATE ADM DOB CC PROB ___ SID # INST # ADJ COMT RACE ______ DET/NOT ___ INST GOODTIME SEX _______ BR OFF ____ AKA _______________________ EXP DATE HGT _______ ADD CONVS ___ --------------------------------------------------------------------------- | CASE # | ORS#OFFCLS | CTS | SENTENCE | MAN | | COUNTY | OFFENSE | | MIN SENT | MIN | | 108507952 | AF | 01 | 10/00/00 | 02/06 | |------------------|------------------|--------|--------------|-----------| | LANE | ARSON I | | | | |------------------|------------------|--------|--------------|-----------| | | | | | | |------------------|------------------|--------|--------------|-----------| | | | | | | |------------------|------------------|--------|--------------|-----------| | | | | | | |------------------|------------------|--------|--------------|-----------| | | | | | | |------------------|------------------|--------|--------------|-----------| | | | | | | |------------------|------------------|--------|--------------|-----------| | | | | | | |------------------|------------------|--------|--------------|-----------| | | | | | | |------------------|------------------|--------|--------------|-----------| | | | | | | |------------------|------------------|--------|--------------|-----------| | | | | | | |------------------|------------------|--------|--------------|-----------| | | | | | | |------------------|------------------|--------|--------------|-----------| | | | | | | |------------------|------------------|--------|--------------|-----------| | | | | | | |------------------|------------------|--------|--------------|-----------| | | | | | | |------------------|------------------|--------|--------------|-----------| | | | | | | |------------------|------------------|--------|--------------|-----------| | | | | | | --------------------------------------------------------------------------- --------------------------------------------------------------- | CASE # | CS | SENTENCE | TS | JUDGE | COUNTY | TO | BEGINS | DAYS | | 108507952 | | 04/02/1986 | 210 | MATTISON |------------------|--------|--------------|--------|---------- | LANE | | | | |------------------|--------|--------------|--------|---------- | | | | | |------------------|--------|--------------|--------|---------- | | | | | |------------------|--------|--------------|--------|---------- | | | | | |------------------|--------|--------------|--------|---------- | | | | | |------------------|--------|--------------|--------|---------- | | | | | |------------------|--------|--------------|--------|---------- | | | | | |------------------|--------|--------------|--------|---------- | | | | | |------------------|--------|--------------|--------|---------- | | | | | |------------------|--------|--------------|--------|---------- | | | | | |------------------|--------|--------------|--------|---------- | | | | | |------------------|--------|--------------|--------|---------- | | | | | |------------------|--------|--------------|--------|---------- | | | | | |------------------|--------|--------------|--------|---------- | | | | | |------------------|--------|--------------|--------|---------- | | | | | |------------------|--------|--------------|--------|---------- | | | | | --------------------------------------------------------------- A B C D E F H/R CRIME CAT MATRIX RANGE TO DANG OFF _____ SEX OFF _____ HEARING DATE ACTIVITY ACTION MOS SET RELEASE DATE AGGRAVATION MITIGATION RESCHEDULE _____ TYPE _____ W/PSYCH _______ PANEL COMMENTS / REASONS
INMATE BAKER SIGNED ORS 144.210 WAIVER ELECTING TO PROCEED WITHOUT INFORMATION AS REQUIRED BY STATUTE.
PANEL RECOMPUTED H/R SCORE ACCORDING TO REVISED MATRIX EFFECTIVE 7/15/85 AND FOUND NO CHANGE.
PANEL FINDINGS: H/R SCORE 8; CRIME CATEGORY 5; MATRIX RANGE 24 TO 36 MONTHS. INMATE AGREES WITH ACCURACY OF H/R SCORE.
PANEL DETERMINED A 30 MONTH PRISON TERM IS APPROPRIATE, THEREFORE, PANEL ESTABLISHED A RELEASE DATE OF 3/12/1988.
PANEL SUSTAINED 30 MONTH MINIMUM.
ONE YEAR SUPERVISION DUE TO NATURE OF OFFENSE.
AGGRAVATION: L. REPETITION OF BEHAVIOR PATTERN WHICH CONTRIBUTES TO CRIMINAL CONDUCT. MITIGATION: ORDERED TO PAY RESTITUTION AFTER TERM OF IMPRISONMENT.
CONDITION 9A HAS BEEN IMPOSED. INMATE IS NOT TO DRINK. SHOULD INMATE VIOLATE THIS CONDITION SPECIAL 1 2 3 4 5 6 7 8 OTHER PAROLE OFFICER IS CONDITIONS: 9A 9B 9C PO BD 10 CONDITIONS TO NOTIFY THE BOARD 11 12 13 14 15 16 IMMEDIATELY
TENTATIVE DISCHARGE: 1 YR. $
SIGNATURE, PRESIDING MEMBER /S/ DINSMORE / PM 044 DATE 08/05/1986
APPENDIX I 255-039-06/85
For the reasons expressed in my dissenting opinion in Anderson v. Board of Parole, 303 Or. 618, 632, 740 P.2d 760, 769 (1987), I respectfully dissent from that portion of this opinion dealing with a "detailed explanation," under ORS 144.135, of the action taken by the Board of Parole with respect to the mandatory minimum sentence. I concur with the balance of the opinion.
Linde, J., joins in this concurring and dissenting opinion.