Opinion
CA A41060; SC S33874
Argued and submitted June 3, 1987,
affirmed August 4, 1987 reconsideration denied October 20, 1987
In Banc
On review from the Court of Appeals.
Judicial review from order of the Board of Parole. 84 Or. App. 563, 735 P.2d 28 (1987).
Lawrence E. Hall, Deputy Public Defender, Salem, argued the cause for petitioner on review. On the petition for review was Gary D. Babcock, Public Defender, Salem.
J. Scott McAlister, Assistant Attorney General, Salem, argued the cause for respondent on review. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
PER CURIAM
The decisions of the Board of Parole and the Court of Appeals are affirmed.
Gillette, J., filed an opinion concurring in part and dissenting in part, joined by Linde, J.
Petitioner was convicted of rape in the second degree and was sentenced to a six-year term of imprisonment with a three-year minimum.
At petitioner's prison term hearing, the Board of Parole (Board) established a history/risk score of 7, crime category 4 with a matrix range of 16 to 22 months, but sustained the 36-month minimum.
Petitioner appealed from the final order of the Board dated June 17, 1986. The Court of Appeals affirmed from the bench.
Petitioner seeks review, alleging that the Board failed to satisfy the requirements of ORS 144.135 and failed to consider certain factors in mitigation. Petitioner's procedural contentions are answered in Anderson v. Board of Parole, 303 Or. 618, 740 P.2d 760 (1987).
Petitioner claims as mitigation that he has had good luck on probation in the past and that he had been undergoing counseling for sex abuse, which apparently was not successful. The Board was correct in deciding there was no mitigation.
The decision of the Court of Appeals is affirmed.
For the reasons expressed in my dissenting opinion in Anderson v. Board of Parole, 303 Or. 618, 632, 740 P.2d 760, 769 (1987), I respectfully dissent from that portion of this opinion dealing with a "detailed explanation," under ORS 144.135, of the action taken by the Board of Parole with respect to the mandatory minimum sentence. I concur with the balance of the opinion.
Linde, J., joins in this concurring and dissenting opinion.