Opinion
No. 4522-C, CA 4851
Argued October 22, 1975.
Affirmed November 3, 1975.
Judicial Review from Board of Parole.
Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for petitioner. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Rhidian M. M. Morgan, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and W. Michael Gillette, Solicitor General, Salem.
Before SCHWAB, Chief Judge, and LANGTRY and THORNTON, Judges.
AFFIRMED.
Petitioner, an inmate of Oregon State Penitentiary, on May 14, 1975 was granted a parole without a release date being set because it was conditional upon, among other things, his obtaining employment. Thereafter, a parole release officer twice took him, in custody, into the Salem area, helping him seek the job he needed to fulfill the mentioned condition for release. On the second trip petitioner broke and ran, despite his custodian's commands to return. In a few hours petitioner was arrested and returned to custody. On June 18, 1975 the State Board of Parole afforded him a hearing, after which it rescinded the parole action it had formerly taken, because of petitioner's demonstrated inability to properly handle his situation, and recommended that he be transferred to Oregon State Hospital for observation and treatment.
Petitioner appeals, contending he did not receive all of the procedural due process required by Morrissey v. Brewer, 408 U.S. 471, 92 S Ct 2593, 33 L Ed 2d 484 (1972), and ORS 144.343 for revocation of parole; for example, he was not given a "written notice of the claimed violations of parole." See Morrissey v. Brewer, supra, 408 US at 489; ORS 144.343(3)(a).
The requirements of Morrissey v. Brewer, 408 U.S. 471, 92 S Ct 2593, 33 L Ed 2d 484 (1972), have been codified and implemented in ORS 144.343.
We hold the Morrissey and statutory requirements did not apply to petitioner because he was not in parole status. In Bailleaux v. Cupp, 16 Or. App. 573, 578, 520 P.2d 483, Sup Ct review denied (1974), citing State v. Ludwig, 218 Or. 483, 344 P.2d 764 (1959), we said: "* * * [T]he parole-granting process continues until the inmate is actually released from confinement."
However, petitioner urges upon us some recent decisions from other jurisdictions which have held that the Morrissey procedures apply after parole is granted, although the inmate has not yet been released from custody. Thus, in In re Prewitt, 8 Cal.3d 470, 474, 105 Cal Rptr 318, 503 P.2d 1326 (1972), the California Supreme Court said:
"* * * [W]e can perceive no significant distinction between the deprivation of * * * conditional liberty enjoyed by a parolee after release and the deprivation * * * after a grant thereof but before the date fixed for release. * * *" (Emphasis supplied.)
Our emphasis notes that a date had there been fixed for release. The same is true with reference to the other two cases relied upon by petitioner: Means v. Wainwright, 299 So.2d 577 (Fla 1974), cert denied 419 U.S. 1116 (1975), and Monohan v. Burdman, 84 Wn.2d 922, 530 P.2d 334 (1975). In the latter case the Washington Supreme Court noted that the question before it was whether a previously granted parole with a tentative release date could be cancelled without Morrissey due process proceedings "* * * for reasons other than inability to develop an acceptable parole rehabilitation plan. * * *" 84 Wn.2d at 926. It was exactly such an inability to develop a parole plan which led to cancelling out the conditional parole at bar.
It may be that some situation may arise, where a parole is so fixed that only the act of release remains, and the requirements of Morrissey and ORS 144.343 must be met in spite of the language we used in Bailleaux, quoted supra. At bar, however, an acceptable parole rehabilitation plan was still in process, and petitioner was not in parole status. He was entitled only to the procedural due process provided by Oregon statutes governing the granting of parole. See Sterling v. Bd. of Parole, 16 Or. App. 481, 519 P.2d 1047, Sup Ct review denied (1974). This he was afforded.
Affirmed.
I concur in the reasoning and the result of the majority opinion. However, I wish to state that my concurrence should not be construed as indicating that I agree with the holdings in the cases from other jurisdictions cited in the majority opinion, specifically, Means v. Wainwright, 299 So.2d 577 (Fla 1974), cert denied 419 U.S. 1116 (1975), Monohan v. Burdman, 84 Wn.2d 922, 530 P.2d 334 (1975), and In re Prewitt, 8 Cal.3d 470, 474, 105 Cal Rptr 318, 503 P.2d 1326 (1972).