Glasser v. Board of Parole and Post-Prison Supervision

860 P.2d 832 (1993)

123 Or. App. 610

Joseph GLASSER, Petitioner, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.

CA A76245.

Court of Appeals of Oregon.

Argued and Submitted August 20, 1993.

Decided October 6, 1993.

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, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before ROSSMAN, P.J., and De MUNIZ and LEESON, JJ.

LEESON, Judge.

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[1] and federal[2] constitutions. We affirm.

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 *833 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, 767 P.2d 75 (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, 832 P.2d 456 (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, 847 P.2d 410 (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.

[1] Article I, section 21, of the Oregon Constitution provides, in part: "No ex post facto law * * * shall ever be passed * * *."

[2] Article I, section 10, of the United States Constitution provides, in part: "No State shall * * * pass any * * * ex post facto Law * * *."