Summary
In Rise v. Board of Parole, 117 Or. App. 265, 843 P.2d 997 (1992), rev den 315 Or. 443 (1993), we held that the petitioner had not shown an ex post facto violation where the Board applied the new rule, but indicated that it would have awarded the same reduction under the old rule.
Summary of this case from Glasser v. Board of ParoleOpinion
CA A68052
Argued and submitted April 30, 1992
Affirmed December 16, 1992 Reconsideration denied February 10, 1993 Petition for review denied February 23, 1993 ( 315 Or. 443)
Judicial Review from Board of Parole.
Lawrence J. Hall, Deputy Public Defender, Salem, argued the cause for petitioner. With him on the brief was Sally L. Avera, Public Defender, Salem.
Yuanxing Chen, Salem, Assistant Attorney General, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Before Richardson, Presiding Judge, and Deits and Durham, Judges.
PER CURIAM
Affirmed.
Petitioner seeks review of a final order of the Board of Parole granting him a ten-month reduction of his sentence. He argues that the Board violated the ex post facto provisions of the Oregon and federal constitutions by calculating his reduction under a rule not yet in effect at the time of his offense. OAR 255-40-025(2). Petitioner also contends that the Board was biased against him due to his service as an Inmate Legal Assistant.
The Board expressly found that it would have awarded petitioner the same 10-month reduction had it applied the old rule instead of the new rule. After the Board made its decision, petitioner declared that he did not need information about the appeal process, because he had worked as an Inmate Legal Assistant. One Board member responded that Inmate Legal Assistants bring most of the frivolous lawsuits.
Petitioner was not disadvantaged by application of the new rule, a showing necessary to trigger ex post facto analysis. See Howard v. State Board of Parole, 105 Or. App. 288, 292, 804 P.2d 509, rev den 311 Or. 432 (1991). He has also failed to prove his bias claim. The Board member's comment evidences neither an unfavorable predisposition about the outcome of petitioner's hearing nor a bias against petitioner personally.
Affirmed.