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Williford v. Board of Parole

Oregon Court of Appeals
Feb 13, 1996
904 P.2d 1074 (Or. Ct. App. 1996)

Summary

In Williford v. Board of Parole, 137 Or. App. 254, 904 P.2d 1074 (1995), we held that notification under the predatory sex offender statute does not constitute punishment and, thus, cannot violate the ex post facto clauses.

Summary of this case from Gress v. Board of Parole

Opinion

CA A83435

Argued and submitted February 28, 1995.

Reversed and remanded for reconsideration in part; otherwise affirmed October 11, 1995. Petition for review denied February 13, 1996 ( 322 Or. 613)

Judicial Review from Board of Parole and Post-Prison Supervision.

James N. Varner, Deputy Public Defender, argued the cause for petitioner. With him on the brief was Sally L. Avera, Public Defender.

Robert K. Lau, Assistant Attorney General, argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

Before Riggs, Presiding Judge, and Landau and Leeson, Judges.


LANDAU, J.

Reversed and remanded for reconsideration of parole supervision term; otherwise affirmed.


Petitioner seeks review of an order of the Board of Parole and Post-Prison Supervision (Board). In 1992, petitioner was convicted of attempted sodomy in the first degree and two counts of sexual abuse in the first degree for crimes committed in 1987. He was sentenced to eight years in prison on the sodomy conviction and three years on each of the sexual abuse convictions. Citing ORS 144.085 and OAR 255-93-000, the Board set an August 21, 1994, release date with a parole supervision term "until the expiration of the sentence" on August 20, 2005. Citing ORS 181.507, ORS 181.508 and ORS 181.509, the Board also held that petitioner was subject to recently enacted statutes concerning community notice of sex offenders.

Petitioner argues that the Board erred in imposing active supervision until the end of his indeterminate sentence. We agree. Fernandez v. Board of Parole, 137 Or. App. 247, 904 P.2d 1071 (1995).

Petitioner also argues that the Board erred in applying community notification statutes to him. We review for violation of a constitutional or statutory provision. ORS 183.482(8)(b); Calderon-Pacheco v. Board of Parole, 309 Or. 454, 457, 788 P.2d 1001 (1990).

Enacted by the 1993 legislature, the community notification statutes provide for an assessment of an offender convicted of certain sexual offenses. If the offender is determined to be a "predatory sex offender," notification of the offender's parole can be given to specified persons and communities. Petitioner argues that application of the notification statutes to him constitutes a violation of his rights against ex post facto laws, because the statutes would impose additional punishment to which he was not subjected at the time of his 1987 offense. See U.S. Const, Art I, § 9; Or Const, Art 1, § 21.

An ex post facto law is one that makes criminal an act that was lawful at the time it was committed, or a law that increases the punishment for a crime after the commission of the act for which punishment is imposed. State v. Gallant, 307 Or. 152, 155, 764 P.2d 920 (1988). Not every change in law which has a deleterious effect on an individual constitutes an ex post facto violation. In State v. Burke, 109 Or. App. 7, 11, 818 P.2d 511, rev den 312 Or. 589 (1992), for example, we held that the amendment to ORS 137.225, which eliminated expunction for the defendant's conviction for sexual abuse of a child, was not "punishment" within the meaning of the ex post facto clauses. The amendment did not relate to the length or nature of incarceration or constructive custody. Moreover, the purpose of the enactment was protective, not punitive: It allowed professions such as day-care centers to discover if they had been contacted by a job applicant who had been convicted of child abuse.

Petitioner does not explain why notification here constitutes additional punishment. The statutes are analogous to the amendment in Burke in that they are protective, not punitive. They do not relate to the length or nature of petitioner's incarceration or constructive custody, and they allow appropriate persons in the community to protect themselves or others from persons who have victimized or injured others. We conclude that any deleterious effect of the statutes does not constitute punishment within the meaning of the state or federal ex post facto clauses. The Board did not err in applying the notification provisions to petitioner.

Reversed and remanded for reconsideration of parole supervision term; otherwise affirmed.


Summaries of

Williford v. Board of Parole

Oregon Court of Appeals
Feb 13, 1996
904 P.2d 1074 (Or. Ct. App. 1996)

In Williford v. Board of Parole, 137 Or. App. 254, 904 P.2d 1074 (1995), we held that notification under the predatory sex offender statute does not constitute punishment and, thus, cannot violate the ex post facto clauses.

Summary of this case from Gress v. Board of Parole

In Williford v. Board of Parole, 137 Or. App. 254, 904 P.2d 1074 (1995), we concluded that it does not. Petitioner does not articulate any other reasons why such an act implicates his liberty interests.

Summary of this case from Schuch v. Board of Parole
Case details for

Williford v. Board of Parole

Case Details

Full title:VERNON WILLIFORD, Petitioner, v. BOARD OF PAROLE AND POST-PRISON…

Court:Oregon Court of Appeals

Date published: Feb 13, 1996

Citations

904 P.2d 1074 (Or. Ct. App. 1996)
904 P.2d 1074

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