Oregon PPS Sanctions May Not Exceed 180 Days; Prior Contrary Ruling Overturned
by Mark Wilson
The Oregon Court of Appeals has held that the Parole Board lacks authority to impose incarceration sanctions in excess of 180 days for post-prison supervision (PPS) violations for life-sentenced offenders convicted of murder.
Richard Hostetter was convicted of murder in 1992 and released on PPS in 2006. He then committed a technical violation by using alcohol and failing to report to his parole officer.
On February 11, 2008, the Oregon Board of Parole and Post-Prison Supervision (Board) revoked Hostetter’s PPS and imposed a sanction of 84 months incarceration, establishing a projected release date of January 17, 2015.
Under former OAR 253-11-004(3) (9/1/89), the Board was authorized to impose incarceration sanctions of “up to ninety (90) days for a technical violation and up to one hundred and eighty (180) days for conduct constituting a crime.” The rule also imposed a 180-day cap on total incarceration sanctions during an entire PPS term, “except as provided in OAR 253-05-004(2)” for offenders like Hostetter serving a life sentence for murder.
“Thus, OAR 253-11-004(3) both limits re-incarceration of an offender for any single PPS violation to 90 or 180 days and places a 180-day cap on aggregate incarcerative sanctions for multiple PPS violations,” subject to the exception in OAR 253-05-004(2). In Jones v. Board of Parole, 231 Ore. App. 256, 218 P.3d 904 (Or. Ct. App. 2009), the Oregon Court of Appeals held “that the 90- and 180-day limitations in OAR 253-11-004(3) do not apply to offenders on lifetime PPS for a murder conviction.” The Jones court read the exception as applying to both the aggregate cap and individual sanction caps for PPS violations.
Hostetter appealed his 84-month incarceration sanction, arguing that Jones incorrectly interpreted the applicable rules. Noting that “the proper construction of OAR 253-11-004(3) and OAR 253-05-004 was not ‘squarely’ presented ... in Jones,” Hostetter argued that Jones should be overturned.
The Court of Appeals agreed. Applying rules of statutory construction, the Court concurred with Hostetter “that the Criminal Justice Council and legislature intended that the exception for those on lifetime PPS for murder set forth in OAR 253-05-004 apply only to OAR 253-11-004(3)’s 180-day aggregate limitation.” Such offenders may not receive more than 90- or 180-days sanctions for each individual PPS violation. As such, the Board erred in imposing an 84-month incarceration sanction for Hostetter’s technical violation. See: Hostetter v. Board of Parole, 255 Ore. App. 328, 296 P.3d 664 (Or. Ct. App. 2013).
The Board appealed the decision to the Oregon Supreme Court, which denied review on June 20, 2013.
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Related legal case
Hostetter v. Board of Parole
|Cite||255 Ore. App. 328, 296 P.3d 664 (Or. Ct. App. 2013)|
|Level||State Court of Appeals|