- Court: Oregon Court of Appeals
- Area(s) of Law: Criminal Procedure
- Date Filed: 01-27-2021
- Case #: A166163
- Judge(s)/Court Below: Landau, S.J. for the Court; Tookey, P.J., & Aoyagi, J.
- Full Text Opinion
Defendant was convicted of aggravated murder in 1981. Under ORS 163.105 (1977), the offense could be modified when Defendant was found likely to be rehabilitated. Therefore, the statute would permit Defendant to override his initial 20-year sentence if he established that he was likely to be rehabilitated. Defendant argues that the lower court wrongly followed its precedent, Larsen v. Board of Parole, 191 Or App 526, 84 P3d 176, rev den, 337 Or 248 (2004), and incorrectly interpreted the statute. In Larsen, the Court rejected the contention that the statute imposes the rehabilitation burden only in cases after 15 years of sentencing but before the minimum listed in the statute. Defendant contended that the law compels the Board of Parole and Post-Prison Supervision to release him without proof that he is likely to be rehabilitated. The Court stated that, under the plain wording of the statute, the “trigger” for the requirement of a rehabilitation hearing “is the imposition of a minimum period of confinement.” State ex rel Engweiler v. Felton, 350 Or 592, 260 P3d 448 (2011). The Court recognized that in order to depart from precedent, it would have to find that there was plain error. Affirmed.