Opinion
CA A76245
Argued and submitted August 20, affirmed October 6, 1993
Judicial Review from Board of Parole and Post-Prison Supervision.
Sally L. Avera, Public Defender, Salem, argued the cause for petitioner. With her on the brief was Lawrence J. Hall, Deputy Public Defender, Salem.
Harrison Latto, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Before Rossman, Presiding Judge, and De Muniz and Leeson, Judges.
LEESON, J.
Affirmed.
Petitioner seeks review of a Board of Parole order granting him a four-month reduction of his prison term. He argues that the Board's order violated the ex post facto provisions of the state and federal constitutions. We affirm.
Article I, section 21, of the Oregon Constitution provides, in part: "No ex post facto law * * * shall ever be passed * * *."
Article I, section 10, of the United States Constitution provides, in part: "No State shall * * * pass any * * * ex post facto Law * * *."
In 1984, petitioner was sentenced to life in prison for murder. The Board set his prison term at 168 months, subject to reduction at periodic hearings. Following a hearing on June 24, 1992, the Board reduced petitioner's sentence by four months pursuant to OAR 255-40-025, as amended in 1988. The Board then granted reconsideration, revoked its prior order, and, "applying the rules in effect at the time of [his] crime," again reduced petitioner's sentence by four months.
At the time of petitioner's crime, OAR 255-40-025 permitted the Board to reduce a prison term by up to 20 percent. Jeldness v. Board of Parole, 90 Or. App. 135, 751 P.2d 243, on recon 92 Or. App. 323, 759 P.2d 1102, rev den 307 Or. 245 (1988). In 1988, the Board amended OAR 255-40-025, making the maximum sentence reduction seven months per hearing. We held that it is an ex post facto violation to apply the amended rule to a prison term for an offense that predates the amendment. Williams v. Board of Parole, 107 Or. App. 515, 812 P.2d 443 (1991), on recon 112 Or. App. 108, 828 P.2d 465, rev dismissed 313 Or. 300 (1992).
The Board's order states that it applied the old rule on rehearing. Petitioner contends that the Board in fact applied the amended rule, contrary to our holding in Williams. He argues that that is apparent from the fact that the Board did not alter the amount of his sentence reduction on rehearing.
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. It follows that petitioner here has not shown an ex post facto violation, where the Board granted rehearing to apply the old rule and concluded that the old rule yielded the same result as the new one.
Petitioner's argument regarding ORS 144.135 does not merit discussion.
Affirmed.