Opinion
CA A65449
Argued and submitted February 27, 1991 Affirmed May 22, 1991 Reconsideration denied July 24, 1991
Petition for review denied September 24, 1991
Judicial Review from Board of Parole.
Lawrence J. Hall, Deputy Public Defender, Salem, argued the cause for petitioner. On the brief was Robert Tate, pro se, Salem.
John A. Reuling, Jr., Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Before Buttler, Presiding Judge, and Rossman and De Muniz, Judges.
PER CURIAM
Affirmed.
Petitioner seeks judicial review of a Board of Parole order setting his prison term at 24 months. He assigns as errors the Board's calculation of his history/risk score, its application of four aggravating circumstances and its rejection of three mitigating factors. The Board's setting of petitioner's history/risk score was consistent with its rules and practice, and the record supports its rejection of the mitigating factors and its application of three of the four aggravating factors in setting his prison term beyond his matrix range.
We write only to address the Board's finding of aggravating factor "P," which, under its rules in effect at the time of hearing, referred to "crime committed as a part of gang related activity." Concededly, that factor is not involved and was not discussed at the hearing. Under the previous rules, factor "P" referred to "persistent misconduct while under supervision." That subject was discussed at the hearing and is applicable to petitioner. In its order, the Board found aggravating factor "P — Probation," so it is clear that it was not finding gang-related activity.
Although the current Board rules do not specifically refer to misconduct while under supervision, they do permit "other" factors to be considered under aggravating factor "Q." The Board's error was technical and harmless.
Affirmed.