Opinion
CA A67824
Argued and submitted February 28, 1992
Reversed and remanded for reconsideration July 22, 1992
Judicial Review from Board of Parole.
Sally L. Avera, Public Defender, Salem, argued the cause and filed the brief for petitioner.
Yuanxing Chen, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave B. Frohnmayer, Attorney General, and Virgnia L. Linder, Solicitor General, Salem.
Before Buttler, Presiding Judge, and Rossman and De Muniz, Judges.
PER CURIAM
Reversed and remanded for reconsideration.
Petitioner seeks judicial review of an order denying him parole. Because petitioner has exhausted his administrative remedies, we have jurisdiction to review. Owens v. Board of Parole, 113 Or. App. 507, 834 P.2d 547 (1992.)
Petitioner argues that the Board erred in finding aggravating factor O, consecutive sentences, because his consecutive sentences already include murder. ORS 144.079(2). We agree that ORS 144.079 and, therefore, factor O, do not apply. Plane v. Board of Parole, 114 Or. App. 60, 834 P.2d 549 (1992). Petitioner's other arguments are without merit.
ORS 144.079(2) provides, in part:
"The method established by this section for determining, where applicable, the total term resulting from the summing of consecutive sentences shall apply only if none of the crimes involved is:
"(a) Murder, as defined in ORS 163.115 or any aggravated form thereof * * *." (Emphasis supplied.)
Reversed and remanded for reconsideration.