S057120, Opinion — Janowski/Fleming v. Board of Parole

432
Argued and submitted January 5, decision of Court of Appeals in both cases
affirmed in part and reversed in part; orders of Board of Parole and Post-Prison
Supervision affirmed in part and reversed in part, and cases remanded to Board of
Parole and Post-Prison Supervision for further proceedings December 23, 2010
KENNETH FREDERICK JANOWSKI,
Petitioner on Review I
Cross-Respondent on Review,
V.
BOARD OF PAROLE
AND POST-PRISON SUPERVISION,
Respondent on Review I
Cross-Petitioner on Review.
(CA A130409; SC S057120, S057276)
RIDGE WAYNE FLEMING,
Respondent on Review,
v.
BOARD OF PAROLE
AND POST-PRISON SUPERVISION,
Petitioner on Review.
(CA A133967; SC S057245)
(Consolidated for argument and opinion)
245 P3d 1270

Cite as 349 Or 432
CJS, Pardon and Parole § 45.
En Banc
On review from the Court of Appeals.*
* On judicial review of Final Orders of the Board of Parole and Post-Prison
Supervision. 226 Or App 82, 202 P3d 920 (2009). 225 Or App 578, 202 P3d 209
(2009).

434 	Janowski/Fleming v. Board of Parole
Denise G. Fjordbeck, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on review/
cross-petitioner on review and petitioner on review. With her
on the brief was John R. Kroger, Attorney General.
Ryan 	T. 	O'Connor, 	Deputy 	Public 	Defender, 	Salem,
argued the cause and filed the brief for petitioner on review/
cross-respondent on review Janowski. With him on the brief
was Peter Gartlan, Chief Defender, Office of Public Defense
Services.
Ridge Wayne Fleming filed the brief for himself.
Ryan 	T. 	O'Connor, 	Deputy 	Public 	Defender, 	Salem,
argued the cause and filed the brief for amicus curiae Office
of Public Defense Services, Appellate Division. With him on
the brief was Peter Gartlan, Chief Defender, Office of Public
Defense Services.
Dennis N. Balske, Portland, filed the brief for amicus
curiae Keven Roper.
GILLETTE, J.
The decision of the Court of Appeals in both cases is
affirmed in part and reversed in part. The orders of the Board
of Parole and Post-Prison Supervision are affirmed in part
and reversed in part, and the cases are remanded to the
Board of Parole and Post-Prison Supervision for further
proceedings.

Cite as 349 Or 432 (2010) 	435
GILLETfE, J.
These two cases, which we have consolidated for
purposes of opinion, present two issues, both of which con-
cern the proper interpretation and applicability of statutes
and administrative rules that have long since been amended,
but which continue to govern the treatment of prisoners who
committed their crimes while those statutes and rules were
in effect.1 The first issue is whether the Board of Parole and
Post-Prison Supervision (the board) has the authority effec-
tively to override a prisoner's 30-year mandatory minimum
sentence for aggravated murder and to release the prisoner
after 20 years in prison, if the board finds that the prisoner is
capable of rehabilitation within a reasonable period of time.
If the answer to that first question is "yes," the second issue
is: Which rules or statutes govern the board's release deci-
sion? The Court of Appeals concluded that the board does
have the authority to override the mandatory minimum sen-
tence and to release prisoners after 20 years if the board has
made certain findings. However, the court concluded that the
prisoners' cases should be remanded to the board to permit
the board to determine in the first instance what rules and
statutes govern the board's release decisions. Fleming v.
Board of Parole, 225 Or App 578, 202 P3d 209 (2009);
Janowski v. Board of Parole, 226 Or App 82, 202 P3d 920
(2009) (reversing and remanding per curiam in light of
Fleming). We allowed the board's and the prisoners' petitions
for review in both cases and now affirm the Court of Appeals'
conclusion that the board has the authority to override the
prisoners' 30-year mandatory minimum sentences for aggra-
vated murder and to release the prisoners after 20 years.
However, because we further conclude that the legislature
intended the board to apply the parole matrix (discussed in
detail below) to determine when to release prisoners in this
situation, we reverse that part of the Court of Appeals deci-
sions remanding the cases to the board for a determination of
applicable law.
The relevant facts of each case are procedural and
are not in dispute. Prisoner Janowski murdered his parents
1 The record does not reflect precisely how many inmates will be affected by our
decision in this case, but one party has estimated that that number is at least 75.

436 	Janowski/Fleming v. Board of Parole
in February 1985. In July 1985, after Janowski pleaded
guilty to those murders, a trial court convicted Janowski of
two counts of aggravated murder and merged those counts
into one conviction. Prisoner Fleming murdered a man dur-
ing a robbery in November 1985 and a trial court convicted
Fleming of aggravated murder in 1986. At the time that
Janowski 	and 	Fleming 	committed 	their 	crimes, 	ORS
163.105(1) (1985) 2 provided that a person convicted of aggra-
vated murder
"shall be sentenced to death or life imprisonment***. If
sentenced to life imprisonment, the court shall order that
the defendant shall be confined for a minimum of 30 years
without the possibility of parole, release on work release or
any form of temporary leave or employment at a forest or
work camp."
Both Janowski and Fleming were sentenced to life imprison-
ment. Pursuant to the directive in ORS 163.105(1) (1985), the
trial courts ordered each of them to serve a mandatory mini-
mum term of imprisonment of 30 years.
Both Janowski and Fleming were incarcerated in
due course. In January 1986, the board issued an order with
respect to Janowski establishing Janowski's matrix range 3
as 	120 to 168 months but, at the same time, 	sustain-
ing Janowski's 30-year (360-month) mandatory minimum
2 In November 1984, the voters passed an initiative measure amending ORS
163, 105, among other things, to include the death penalty as a possible sanction for
aggravated murder. By proclamation of the governor, that measure took effect on
December 6, 1984; accordingly, the 1985 version of ORS 163.105 applies with
respect to crimes committed after December 6, 1984, including the aggravated
murders committed in these cases.
3 As will be discussed in more detail later in this opinion, the legislature estab-
lished the parole matrix system in 1977. Or Laws 1977, ch 372, §§ 1-18. Under that
system, the trial court imposed a sentence that was the maximum term that an
offender could serve for his or her crime, but the board determined the actual dura-
tion of an inmate's imprisonment according to a matrix that the legislature
directed the board to create. See Hamel v. Johnson, 330 Or 180, 185-86, 998 P2d
661 (2000) (so explaining}; Or Laws 1977, ch 372, § 2 (directing board to create
matrix). The matrix established ranges of duration of imprisonment for various
crimes according to the seriousness of the offense and the offender's criminal his-
tory. Or Laws 1977, ch 372, § 2. The matrix system remained in effect until 1989,
when the legislature adopted a new sentencing system that required judges to use
defined presumptive punishments, set out in sentencing "guidelines" created by
the State Sentencing Guidelines Board and later approved by the state legislature,
for most felony convictions. Or Laws 1989, ch 790, § 87.

Cite as 349 Or 432 (2010) 	437
sentence. In February 1987, the board made a similar deter-
mination concerning Fleming, concluding that the applicable
matrix range for Fleming's crimes was 228 to 288 months. In
the board's order establishing that matrix range for Fleming,
the board also concluded that it did not have the statutory
authority to override the 30-year (360-month) mandatory
minimum sentence that the trial court had imposed.4 On
November 22, 1995, the board issued orders retracting its
crime classification and matrix range calculations for both
Janowski and Fleming, because it concluded that "aggra-
vated murder is an unclassified felony; therefore, there is no
crime severity rating or matrix range." 5
After Janowski and Fleming had been incarcerated
for 20 years, they each sought a hearing under ORS 163.105
(1985), which, in addition to requiring the trial court in sub-
section (1) of the statute to impose a 30-year mandatory min-
imum sentence for persons sentenced to life imprisonment
for aggravated murder, also provided that
"(2) 	At any time after 20 years from the date of impo-
sition of a minimum period of confinement pursuant to sub-
section (1) of this section, the State Board of Parole, upon
the petition of a prisoner so confined, shall hold a hearing to
determine if the prisoner is likely to be rehabilitated within
a reasonable period of time. The sole issue shall be whether
or not the prisoner is likely to be rehabilitated within a
reasonable period of time. * * *.
"* * * * *
4 The board held the hearing in each case and established a matrix range for
each prisoner pursuant to ORS 144.120 (1985), which required the board to hold a
hearing "[w]ithin six months of the admission of a prisoner to any state penal or
correctional institution." However, at the same time, the board upheld each
inmate's 30-year mandatory minimum sentence because ORS 144.110(2)(b) (1985)
provided that, notwithstanding the directive to the board to establish a matrix
range for each prisoner, the board "shall not release a prisoner on parole who has
been convicted of murder defined as aggravated murder under the provisions of
ORS 163.095, except as provided in ORS 163.105."
5 In fact, the board was incorrect on that point, at least with respect to
Janowski. As we discuss below, at the time that Janowski committed his crimes,
aggravated murder still was a "classified felony" and the board's rules required it to
set a matrix range for aggravated murder. However, as we explain below, whether
the board "classified" aggravated murder for matrix purposes and whether its rules
specifically required it to set a matrix range for persons convicted of aggravated
murder is of limited relevance to our decision in this case.

438 	Janowski/Fleming v. Board of Parole
"(3) 	If, upon hearing all the evidence, the board, upon
a unanimous vote of all five members, finds that the pris-
oner is capable of rehabilitation and that the terms of the
prisoner's confinement should be changed to life imprison-
ment with the possibility of parole, or work release, it shall
enter an order to that effect and the order shall convert the
terms of the prisoner's confinement to life imprisonment
with the possibility of parole or work release. Otherwise,
the board shall deny the relief sought in the petition."
Pursuant to that statute, in May 2005, the board conducted a
hearing concerning Janowski and, in May 2006, a hearing
concerning Fleming, to determine whether either man was
likely to be rehabilitated within a reasonable period oftime.6
At the conclusion of each hearing, the board unanimously
found that each man had made the requisite showing and
that the terms of confinement of each should be converted to
life imprisonment with the possibility of parole, as provided
in ORS 163.105(3) (1985). Accordingly, the board entered
orders to that effect. In each case, however, the board set a
release date for the prisoner at the conclusion of his 30-year
mandatory 	minimum 	sentence. 	That 	is, 	the 	board 	set
Janowski's release date for May 2015 and Fleming's for April
2016.
Each 	prisoner 	requested 	administrative 	review,
arguing, among other things, that ORS 163.105(3) (1985)
gave the board authority to override the statutorily man-
dated 30-year minimum sentence for aggravated murder
upon a finding that a prisoner is likely to be rehabilitated
within a reasonable period of time and, therefore, gave the
board concomitant authority to release a prisoner before the
30-year mandatory minimum sentence had expired. They
also argued that the laws in effect when they committed their
crimes required the board to set a release date in accordance
with the matrix ranges in effect on the date that they com-
mitted their crimes. In addition, Janowski argued that he
was entitled to immediate release because, at the time of the
board's finding of likelihood of rehabilitation and the conse-
quent conversion of the terms of his imprisonment, he
6 Under ORS 163.105(2)(a) (1985), the burden of proof was on the prisoner to
prove by a preponderance of the evidence that he was likely to be rehabilitated
within a reasonable period of time.

Cite as 349 Or 432 (2010) 	439
already had been incarcerated longer than the matrix range
for his crime. In each case, the board rejected the prisoner's
claims and denied relief.
Janowski and Fleming each sought judicial review of
the board's rulings in the Court of Appeals, which, as noted,
held that the board did have authority to override the 30-year
mandatory minimum sentences in these cases and to release
the prisoner after 20 years of imprisonment, but remanded
the cases to the board for a determination of which laws or
rules govern the board's actual release decisions. The board
seeks review of that part of the Court of Appeals decisions
concluding that it has authority to override a 30-year man-
datory minimum sentence for aggravated murder. Janowski
and Fleming seek review of that part of those decisions
remanding the cases to the board to determine which rules
govern release decisions. We turn first to the issue concern-
ing the scope of the board's authority under ORS 163.105
(1985).
As did the Court of Appeals, we review the board's
conclusion that it did not have authority under ORS 163.105
(1985) to override the 30-year mandatory minimum sentence
for aggravated murder to determine whether the board erro-
neously interpreted that provision oflaw. We examine the
terms of ORS 163.105 (1985) in an effort to discern the intent
of the legislature in enacting it, using the methodology for
statutory interpretation that this court explained in State v.
Gaines, 346 Or 160, 206 P3d 1042 (2009).
As noted above, at the time that Fleming and
Janowski committed their offenses, ORS 163.105 (1985) pro-
vided, in relevant part, as follows:
"Notwithstanding the provisions of ORS chapter 144
[relating to parole and work release], ORS 421.165 [(1985)
relating to temporary leave] and ORS 421.450 to 421.490
[(1985) relating to forest and work camps]:
"(1) 	Wben a defendant is convicted of aggravated mur-
der as defined by ORS 163.095, the defendant shall be sen-
tenced to death or life imprisonment pursuant to ORS
163.150. If sentenced to life imprisonment, the court shall
order that the defendant shall be confined for a minimum of
30 years without the possibility of parole, release on work

440 	Janowski/Fleming v. Board of Parole
release or any form of temporary leave or employment at a
forest or work camp.
"(2) 	At any time after 20 years from the date of impo-
sition of a minimum period of confinement pursuant to sub-
section (1) of this section, the State Board of Parole, upon
the petition of a prisoner so confined, shall hold a hearing to
determine if the prisoner is likely to be rehabilitated within
a reasonable period of time. The sole issue shall be whether
or not the prisoner is likely to be rehabilitated within a
reasonable period of time.***.
"* * * * *
"(3) 	If, upon hearing all of the evidence, the board,
upon a unanimous vote of all five members, finds that the
prisoner is capable of rehabilitation and that the terms of
the prisoner's confinement should be changed to life impris-
onment with the possibility of parole, or work release, it
shall enter an order to that effect and the order shall con-
vert the terms of the prisoner's confinement to life impris-
onment with the possibility of parole or work release.
Otherwise, the board shall deny the relief sought in the
petition."
We begin our analysis of the text of ORS 163.105
(1985) by observing that subsection (1) requires the trial
court to order a defendant who was convicted of aggravated
murder and sentenced to life imprisonment to serve a man-
datory minimum sentence of 30 years' imprisonment without
the possibility of parole or work release. The trial court has
no discretion in the matter, and it is undisputed that that the
trial court entered such an order in both Fleming's and
Janowski's cases. We also observe, preliminarily, that sub-
section ( 1) does not refer in any way to the board or the
board's authority.
Subsection (2) gives prisoners a right to a hearing
after 20 years to determine whether they are likely to be
rehabilitated within a reasonable period of time. The timing
of that hearing-the fact that such a hearing is to occur
10 years before the expiration of the 30-year minimum
term-indicates that the legislature thought that some legal
consequence would flow from a "likely to be rehabilitated"
determination. That impression is bolstered by the refer-
ence to rehabilitation in a "reasonable time." That is, the

Cite as 349 Or 432 	441
legislature could 	have referred to 	rehabilitation in the
10 years that would remain before expiration of the mini-
mum term, rather than to "a reasonable time," if it intended
that the inmate's status remain unchanged for the remainder
of the 30-year minimum term. 7 We conclude that the refer-
ence to a "reasonable time" in subsection (2) indicates that
the legislature intended a likely-to-be-rehabilitated finding
to have a substantive and practical legal effect at the time
that it was made.
If doubt remains, subsection (3) settles it. That sub-
section states that the board, if it finds that the prisoner is
"capable of rehabilitation," "shall" enter an order that "con-
vert[s] the terms of the prisoner's confinement to life impris-
onment with the possibility of parole or work release." "Shall"
is directory. The plain, ordinary, and natural meaning of the
word "convert" is to "change or turn from one state to
another: alter in form, substance, or quality." Webster's Third
New Int'l Dictionary 499 (unabridged ed 2002). The "terms of
the prisoner's confinement" are the conditions under which
the trial court sentenced the defendant to life in prison, viz.,
incarceration without possibility of parole for 30 years. 8
·r The board argues that, on the contrary, subsection (2) does not imply any-
thing respecting the board's authority to override the 30-year mandatory minimum
sentence; rather, the board asserts, subsection (2) merely gives both the board and
the prisoner time to come to an agreement that the inmate actually has been reha-
bilitated and to prepare for his eventual release after 30 years. Interestingly, how-
ever, the way that the board chose to conduct the hearings on the inmates' rehabil-
itation is inconsistent with that interpretation. Specifically, at bothJanowski's and
Fleming's hearings in 2005 and 2006 respectively, the board required the inmates
to make the showing set out in OAR 255-032-0020. Among other things, that rule
required (and still requires) a prisoner to present a viable release plan and to estab-
lish his suitability for parole on the date of the rehabilitation hearing. OAR 255-
032-0020(1)(1) and (j) (2003); OAR 255-032-0020(9), (10). Such evidence relating to
any proposed release plan would be crucial to the board's determination whether to
release a prisoner imminently, but that evidence could-indeed likely would-be
stale 10 years later.
8 In Norris u. Board of Parole, 331Or194, 13 P3d 104 (2000), cert den, 534 US
1028, 122 S Ct 562, 151 L Ed 2d 437 (2001), this court acknowledged that the word
"terms" in ORS 163.105(3) (1985) could refer to the conditions of confinement, but
held that the phrase "terms of confinement" refers to the sentence imposed by the
trial court for aggravated murder under ORS 163.105. Id. at 207. However, as we
explain in Severy/Wilson, 349 Or 461, 473-74, 245 P3d 119 (2010), the court's
stated bases for its decision in Norris respecting the part of the decision concerning
the timing of rehabilitation hearings do not provide support for its conclusions, are
internally inconsistent, and ignore the words of the statute; for those reasons, we
declined to follow Norris. Instead, as pertinent here, we interpret the phrase

442 	Janowski/Fleming v. Board of Parole
Severy /Wilson, 349 Or 461, 477-78, 245 P3d 119 (2010).
Thus, ORS 163.105(3) (1985), in requiring conversion of the
prohibition on parole to the possibility of parole, necessarily
eliminates the 30-year mandatory minimum sentence.
ORS 163.105(3) (1985) states that, ifthe board finds
the prisoner to be capable of rehabilitation, "it shall enter an
order to that effect and the order shall convert the terms of
the prisoner's confinement to life imprisonment with the pos-
sibility of parole or work release." (Emphasis added.) That
mandatory directive to the board implies that the conversion
is to take place immediately, rather than 10 years in the
future. 9 Our examination of the text of ORS 163.105(3) thus
further establishes that, once the conversion described in the
statute occurs, the prisoner henceforth is serving a term of
life in prison with the possibility of parole. He no longer is
subject to the mandatory minimum term that the trial court
set, and he is eligible for parole at that point. 10
In interpreting a 	statute, a 	court also looks at
relevant context, which includes related statutes and the
"terms of confinement" to mean the conditions under which a defendant is required
to serve his life sentence. Severy/ Wilson, 349 Or at 4 77-78.
9 In fact, as noted above, the board did purport to "convert the terms" of
J anowski's and Fleming's confinement by order immediately after it found them to
be capable of rehabilitation. However, any such "conversion" would have had no
practical effect on the term of confinement for either inmate, because the board set
parole release dates for each of them 10 years in the future.
10 The Court of Appeals found this construction of ORS 163.105(3) implausible
because, in its view, it renders the 30-year mandatory minimum sentence required
in subsection (1) surplusage. That is, according to that court,
"[i]f ***subsection (3) permits the board to parole [a prisoner] after 20 years
based on a finding that he is likely to be rehabilitated within a reasonable
period of time(,] then the phrase '30 years' as used in subsection (1) means, in
effect, the same thing as the phrase '20 years' as used in subsection (2). That is,
if fthat view] is correct, there is no obvious reason why subsection (1) should
not have said 'minimum of 20 years without the possibility of parole' rather
than 'minimum of 30 years without the possibility of parole.'"
Fleming, 225 Or App at 585 n 3. That analysis overlooks the fact that subsection (1)
of ORS 163.105 is a directive to the trial court; it sets the mandatory minimum sen-
tence that the trial court must impose in certain circumstances for the crime of
aggravated murder. As discussed above, it does not purport to describe or proscribe
the board's authority in any way. And, as other, related statutes-which we
describe in detail below-show, the legislature did not view a trial court's imposi-
tion of a mandatory minimum sentence as inherently inconsistent with the board's
authority to later set a parole release date that would be reached before the expi-
ration of the mandatory minimum sentence originally imposed.

Cite as 349 Or 432 (2010) 	443
"statutory framework within which the law was enacted."
State v. Dahl, 336 Or 481, 487, 87 P3d 650 (2004) (internal
quotation marks omitted). In this case, context also supports
our initial conclusion that ORS 163.105 (1985) gave the board
authority to override the court-imposed 30-year mandatory
minimum sentence for aggravated murder and to release a
prisoner on parole before the expiration of that term.
ORS 144.110, which deals with restrictions on parol-
ing persons who have been sentenced to minimum terms,
provides the most relevant context for our analysis, because
it cross-references ORS 163.105 and because it was enacted
at the same time that the legislature enacted ORS 163.105.
See Or Laws 1977, ch 370, § 2 (enacting ORS 163.105), and
Or Laws 1977, ch 372, § 4 (enacting ORS 144.110). When it
was enacted, and at the time that Janowski and Fleming
committed their crimes, ORS 144.110 provided:
"(1) 	In any felony case, the court may impose a mini-
mum term of imprisonment of up to one-half of the sentence
it imposes.
"(2) 	Notwithstanding the provisions of ORS 144.120
and 144.780:
"(a) 	The board shall not release a prisoner on parole
who has been sentenced under subsection (1) of this section
until the minimum term has been served, except upon affir-
mative vote of at least four members of the board.
"(b) 	The board shall not release a prisoner on parole
who has been convicted of murder defined as aggravated
murder under the provisions of ORS 163.095, except as pro-
vided in ORS 163.105."
In subsection (1), the legislature granted trial courts discre-
tion to impose a minimum period of imprisonment with
respect to felonies other than aggravated murder. As noted,
the trial court had no similar discretion with respect to
aggravated murder; ORS 163.105(1) required trial courts to
impose a 30-year minimum period of imprisonment for
aggravated murder (if the defendant was not given the death
penalty).
Next, subsection (2) set out two processes for effec-
tively overriding those mandatory minimum sentences. The

444 	Janowski/Fleming v. Board of Parole
processes were parallel, a fact demonstrated by their use of
identical wording in paragraphs (2)(a) and (2)(b), viz., "The
board shall not release a prisoner on parole * * * except
***."Under paragraph (2)(a), in cases in which the court
had imposed mandatory minimum sentences for felonies
other than aggravated murder, the board had the authority
to override those mandatory minimum sentences if four of
the five board members11 agreed. Paragraph (2)(b), which
prohibited the board from releasing on parole a prisoner who
had been convicted of aggravated murder "except as provided
in ORS 163.105," gave the board similar authority, albeit
with more onerous preconditions: In the case of prisoners
convicted of aggravated murder, the prisoner was not per-
mitted to seek a rehabilitation hearing that might lead
to an override of the prisoner's judicially imposed sentence
until he already had been incarcerated for 20 years, the bur-
den was on the prisoner to convince the board that he was
likely to be rehabilitated within a reasonable time, and the
board was required to agree with the prisoner unanimously
rather than by a four-of-five member vote. ORS 163.105(2),
(3).
Additionally, we think that it is noteworthy that
both ORS 144.110(2)(a) and (2)(b) referred to the release of a
prisoner on parole. That is, the legislature clearly contem-
plated that prisoners, even those who had been convicted of
aggravated murder, could be released on parole ifthe condi-
tions set out in paragraphs (a) and (b) were met.
The 	statute 	governing 	ordinary, 	nonaggravated
murder, ORS 163.115 (1985), also provides relevant context.
At the time that Fleming committed his offense, that statute
included a 10-year mandatory minimum sentence for mur-
der, ORS 163.115(3)(b) (1985), and gave the trial court the
authority to order the defendant to serve an additional
15 years in prison without the possibility of parole or work
release 	or 	any 	other 	form 	of 	temporary 	leave, 	ORS
163.115(3)(c) 	(1985). 	At 	the 	same 	time, 	however, 	ORS
163.115(3)(d) (1985) specifically provided that
11 See ORS 144.005(1) (1985) (Board of Parole composed of five members).

Cite as 349 Or 432 (2010) 	445
"[t]he minimum term set forth in paragraph (b) or (c) of this
subsection may be set aside by a unanimous vote of the
State Board of Parole."
Thus, and as ORS 144.110(2)(a) (1985) (discussed above) also
shows, the legislature did not intend for a trial court's impo-
sition of a mandatory minimum sentence to preclude the
board from releasing a prisoner on parole before that sen-
tence expired.
Based on the foregoing, we conclude, at this point in
our analysis, that text and context indicate that the legisla-
ture intended the board to have the authority to override the
30-year mandatory minimum aggravated murder sentence
and to release prisoners on parole before the expiration of
that term.
Our interpretive paradigm also directs us to con-
sider this court's case law that construes pertinent statutes.
In its earlier cases, this court has made various observations
concerning the meaning of ORS 163.105(3). For example, in
State v. Shumway, 291Or153, 164, 630 P2d 796 (1981), the
court assumed that an inmate convicted of aggravated mur-
der and given a mandatory minimum sentence of either 30 or
20 years would be eligible for parole after either 20 or
15 years (depending on the degree of aggravation under the
aggravated murder statute then in effect, ORS 163.105
(1981))-that is, before the expiration of the prisoner's man-
datory minimum sentence for aggravated murder. Similarly,
in State v. Wille, 317 Or 487, 503 n 12, 858 P2d 128 (1993),
this court summarized the relevant wording in ORS 163.105
as providing a 30-year mandatory minimum sentence that
"includes a possibility of parole after 20 years for prisoners
who establish that they are likely to be rehabilitated within a
reasonable period of time." Those cases show that the court
long has read ORS 163.105(3) in a way that is consistent with
our analysis here. 12
12 We also note that, as the Court of Appeals concluded after an able and thor-
ough examination of the record, Fleming, 225 Or App at 596-99, "the legislative his-
tory supports [the] contention that the legislature intended, in cases such as
[these], for the board to be able to override the 30-year sentence upon a finding that
[the prisoner] was likely to be rehabilitated within a reasonable time." Id. at 599.

446 	Janowski/Fleming v. Board of Parole
To summarize, we conclude, based on our review of
the text of ORS 163.105 (1985), its context, and our case law,
that ORS 163.105 (1985) gave the board the authority to
override 	the 	30-year mandatory minimum sentence for
aggravated murder, and to consider releasing a prisoner on
parole after 20 years, upon a finding that the prisoner is
likely to be rehabilitated within a reasonable time. We there-
fore affirm the part of the decision of the Court of Appeals
that so holds.
We turn now to consider what laws or rules govern
the board's release decisions for those prisoners whom it has
unanimously determined are capable of rehabilitation. As
noted, the Court of Appeals concluded that the board's rules
provide no clear mechanism for determining when to release
prisoners who have been convicted of aggravated murder,
and it remanded the case to the board to "reevaluate which, if
any, of its authorizing statutes properly apply to [the prison-
ers'] circumstances, in light of [its] interpretation of ORS
163.105 (1985)." Fleming, 225 Or App at 601; see Janowski,
226 Or App at 83 (to same effect). As we shall explain, we
think that the relevant statutes suggest that the legislature
intended that the board employ the matrix system to set
release dates for those prisoners whom it has unanimously
determined are capable of rehabilitation. For that reason, we
reverse the contrary conclusion of the Court of Appeals.
At the outset, we observe that ORS 163.105 (1985)
was silent with respect to how the board was expected to
determine a prisoner's actual duration of confinement, once
the board had converted the prisoner's term to life in prison
with the possibility of parole. Furthermore, no other statute
directly addressed that issue.
ORS 163.105 (1985) did, however, contain a refer-
ence to the statute governing the parole matrix system; the
statute stated that its provisions applied "notwithstanding
the provisions of ORS chapter 144," which govern parole and
the parole matrix, among other things. The "notwithstand-
ing" clause means that, to the extent that ORS 163.105
(1985) and ORS chapter 144 contain conflicting provisions,
the former prevails. Severy v. Board of Parole, 318 Or 172,

Cite as 349 Or 432 (2010) 	447
178, 864 P2d 368 (1993) ("The function of the 'notwithstand-
ing' clause that opened ORS 163.105 was to make the statute
an exception to the provisions of law referenced in the
clause."). ORS 144.110(2)(b) (1985), in turn, contained an
acknowledgement of the fact that the parole provisions in
chapter 144 were subordinate to the provisions of ORS
163.105 (1985); that subsection, which dealt with restrictions
on release on parole, provided that the "board shall not
release a prisoner on parole who has been convicted of mur-
der defined as aggravated murder under the provisions of
ORS 	163.095, except as provided in ORS 	163.105." As
already discussed, however, we have concluded that the
effect of those statutes, read together, is only to preclude the
board from setting a parole release date for a prisoner who
had been convicted of aggravated murder until the board has
found the prisoner to be capable of rehabilitation and has
converted the terms of his confinement to life in prison with
the possibility of parole; they do not deny the board the
authority to release a prisoner on parole before the expiration
of the mandatory minimum sentence once the board has con-
verted the mandatory term into a sentence that includes the
possibility of parole. Unfortunately, those statutes do not
shed any light on the question of the applicability of the
matrix to the board's parole release decision in the specific
case of inmates whose 30-year mandatory minimum sen-
tences for aggravated murder have been converted.
However, at the time that Janowski and Fleming
committed their crimes, the only statutes that gave the board
authority to determine the actual duration of incarceration
for any offender or to release inmates on parole were the stat-
utes governing the matrix system in ORS chapter 144. 13 By
13 This court explained the operation of the matrix system in Hamel. Under
that system,
"a trial court imposed an indeterminate sentence of a specified duration on a
defendant who had been convicted of a crime. An indeterminate sentence
stated only a maximum term to be served under the jurisdiction of the Department
of Corrections. Such a sentence did not establish the length of time that a
defendant was to be incarcerated. * * *. Regardless of the length of an indeter-
minate sentence, under ORS 144.780 and ORS 144.785, 'it is the [Boardl that
determines the actual duration of imprisonment.' * * *. In other words, for
prisoners sentenced under the matrix system, the Board, not the court, deter-
mines the actual duration of imprisonment.***.

448 	Janowski/Fleming v. Board of Parole
its terms, that matrix applied even in the cases of those per-
sons who had been convicted of"murder" under ORS 163.115
(that is, ordinary, nonaggravated murder), 14 and sentenced
by a trial court to life in prison with the possibility of parole. 15
The 	question, 	then, 	is 	whether 	the 	legislature
intended to treat prisoners like Janowski and Fleming,
whose terms of confinement were converted by the board to
life in prison with the possibility of parole, differently than it
"In sum, under the matrix system, the parole release date that is set by the
Board, not the indeterminate sentence, establishes how long a prisoner will be
incarcerated. The indeterminate sentence merely provides the outermost limit
of the Board's authority over the length of a prisoner's term of incarceration.
"* * * ORS 144.120(1) directs the Board to conduct a hearing within six
months to a year after the prisoner has arrived in a correctional facility and to
set an initial parole release date 'pursuant to ORS 144.780.' ORS 144.780, in
turn, directs the Board to adopt rules establishing 'ranges of duration of
imprisonment to be served for felony offenses prior to release on parole.' Under
the Board's rules, the 'ranges of duration' referred to in ORS 144.780 are
known as the 'matrix ranges.' OAR 255-005-0005(28) (1998). The matrix
ranges identify the ranges of months within which the Board has discretion to
set a prison term."
Hamel, 330 Or at 185-87 (citations omitted).
14 Ordinary, nonaggravated, murder was and is defined in ORS 163.115. When
Janowski committed his crimes, that statute required that a person convicted of
murder under that statute be "punished by imprisonment for life." ORS 163.115(3)
(1983). At that time, there was no mandatory minimum sentence for murder, and
the board determined the duration of the defendant's actual imprisonment under
the matrix. See Commentary to Criminal Law Revision Commission Proposed
Oregon Criminal Code, Final Draft and Report§ 88 (July 1971) (under the new sen-
tencing scheme for murder in ORS 163.115, under which the sentence for murder
would be life in prison, "parole eligibility * * * would be determined by the State
Board of Parole and Probation in the same manner as for any other convicted
offender"); ORS 144.120 (1983) (directing board to make parole decision under
matrix). As discussed above, by the time that Fleming committed his crime, the leg-
islature had amended ORS 163.115 to include a 10-year mandatory minimum sen-
tence for murder, ORS 163.115(3)(a) (1985), and to give the trial court the authority
to order the defendant to serve an additional 15 years in prison without the possi-
bility of parole or work release or any other form of temporary leave, ORS
163.115(3)(b) (1985), but it permitted the board to "set aside" the court-imposed
mandatory minimums with a unanimous vote of its members. ORS 163.115(3)(d)
(1985). If the board set aside the minimum term that the trial court had imposed,
then the term of confinement would revert to life in prison with the possibility of
parole and the board would determine the duration of the defendant's actual
imprisonment under the matrix.
See ORS 144.120 (1985) (requiring board to set parole release dates for all
prisoners within six months of their admission to any state penal or correctional
institution); see generally State v. Macy, 320 Or 408, 886 P2d 1010 (1994) (discuss-
ing matrix ranges for prisoner convicted of multiple murders and given consecutive
life sentences).

Cite as 349 Or 432
treated those prisoners whose sentences oflife in prison with
the possibility of parole were imposed by the trial court at the
time of their convictions for murder. The board has not
pointed to any statutory provision or any other indication of a
legislative intent to treat the two situations differently, and
our research discloses none.
During the 	relevant 	time 	period, 	ORS 	144.120
(1985) 16 provided:
"(1) 	Within six months of the admission of a prisoner
to any state penal or correctional institution, the board
shall conduct a parole hearing to interview the prisoner and
set the initial date of release on parole pursuant to subsec-
tion (2) of this section. Release shall be contingent upon the
satisfaction of the requirements of ORS 144.125.
"(2) 	In setting the initial parole release date for a pris-
oner pursuant to subsection (1) of this section, the board
shall apply the appropriate range established pursuant to
ORS 144.780. Variations from the range shall be in accor-
dance with ORS 144. 785.
"* * * * *
"( 4) 	Notwithstanding subsection (1) of this section, in
the case of a prisoner whose offense included particularly
violent or otherwise dangerous criminal conduct * * *, the
board may choose not to set a parole date."
In 1985, those provisions contained no exception for prison-
ers serving a mandatory minimum sentence or for prisoners
who had been convicted of aggravated murder or murder. 17
Under ORS 144.120, the board was required to determine a
16 We have set out the 1985 version of ORS 144.120, which was effective when
Fleming committed his offense. However, that statute was identical in all material
respects to the version in effect when Janowski committed his offenses. In addition,
with one important exception, the 1985 and 1983 versions of all parts of ORS chap-
ter 144 that we discuss in this opinion are identical in all material respects. Accord-
ingly, for convenience, we cite only to the 1985 version except when a specific ref-
erence to a particular version is required.
ORS 144.120 eventually was amended to provide certain exceptions to the
requirement that the board set release dates within certain time frames for a pris-
oner entering a penal institution. In 1991, the legislature amended the statute to
create an exception for prisoners who had been convicted of aggravated murder. Or
Laws 1991, ch 126, § 6. In 1999, the statute was amended again to create an excep-
tion for those prisoners who had been convicted of murder. Or Laws 1999, ch 782,
§ 3.

450 	Janowski/Fleming v. Board of Parole
matrix range and to set an initial parole release date for both
Janowski and Fleming within six months of their entry into
prison, unless it invoked subsection (4) and chose not to set a
release date because of the particularly violent nature of the
prisoners' crimes. 18 And, even if that were not decisive sup-
port for the proposition that the matrix applies after prison-
ers' terms of confinement are converted to life with the pos-
sibility of parole under ORS 163.105(3) (1985), a review of the
legislative history of ORS 163.105 (1985) confirms that that
is what the legislature had in mind.
That legislative history is replete with comments by
legislators that reflect their assumptions that the parole
matrix would apply. In 1977, when the bill that became ORS
163.105 first was considered, legislators made many such
statements in connection with proposed amendments to the
bill that added mandatory minimum sentences for aggra-
vated murder and provided for rehabilitation hearings. The
early drafts of the amended bill permitted a prisoner to seek
a rehabilitation hearing after two years of incarceration. In
discussing those drafts, members of the Senate Committee
on the Judiciary focused on the absolute minimum length of
time (the "floor") that a person convicted of aggravated mur-
der would spend in prison, assuming that the board overrode
the court-imposed minimum term. Because the draft bill did
not contain a floor at that time, the committee understood
that "[i]t would depend on the parole matrix." Tape Recording,
Senate Committee on the Judiciary, HB 2011, June 2, 1977,
Tape 38, Side 2 (statement of Sen Betty Roberts). Eventually,
the committee decided to add a 15-year floor before a prisoner
would be permitted to seek a rehabilitation hearing. In dis-
cussing the effect of that floor, Senator Wallace P. Carson,
Jr., stated, in somewhat colloquial terms, that,
"in this instance rather than delegating the matrix function
to the board, the legislature would be setting a 15-year min-
imum. And they can work their matrix all they want, they
can amend it up or down but the guy is going to do 15 years
in the slammer.
18 In this case, as noted, the board did initially determine a matrix range and
set a release date for each prisoner at a hearing conducted six months after his
incarceration. Even when the board later withdrew those orders, however, it did
not invoke subsection (4) as the reason for doing so.

Cite as 349 Or 432 (2010) 	451
Id.
"* * * * *
"We've in effect just mandated in two aggravated mur-
der situations, the matrix for the parole board. They can't
go below 15 [years]. The lower end of your matrix is
15 years. * * * In other words, if they find the matrix is
15 years, the matrix matches perfectly. If they find 20,
you're looking at 5 more [years]."
Additionally, when the amended bill was sent to the
House 	of Representatives, 	Representative Hardy Myers
explained to the House that the bill had been amended to
allow the board to override the minimum term imposed at
sentencing by adding
"a procedure dealing with consideration by the parole board
after a designated period of time, a consideration whether
the person should, in effect, be taken out from under the
minimum sentencing structure and placed in the matrix
scheme.
"* * * * *
"The other portion of the conference committee report
would retain the power of the parole board to, in effect,
remove the person from the minimum sentencing structure
at specified time intervals. That is to consider petitions for,
in effect, that removal."
Tape 	Recording, 	House 	of 	Representatives, 	HB 	2011,
June 29, 1977, Tape 36, Track 1.
In addition, as the Court of Appeals explained below,
Fleming, 225 Or App at 597, the legislature in 1981 amended
the provision in ORS 163.105 requiring the board to convert
a prisoner's terms of confinement to life in prison with the
possibility of parole if it found that the prisoner was likely to
be rehabilitated in a reasonable time. At that time, the legis-
lators again discussed the interplay between the mandatory
minimum sentence for aggravated murder, the rehabilitation
provisions, and the applicability of the matrix. At a Senate
hearing in July 1981, the chair of the Senate Committee on
Justice, Jan Wyers, discussed the effect of the 30-year man-
datory minimum sentence in that context with witness Jerry
Cooper of the Oregon District Attorneys Association:

452 	Jan ow ski/Fleming v. Board of Parole
"[Wyers:] 	Is there any way, under this bill, that a per-
son who starts out with the 30-year aggravation could get
less than a 20-year sentence?
"[Cooper:] 	No.
"[Wyers:] 	Ifit is reduced by unanimous vote to 20, how
long would a person serve?
"[Cooper:] 	It would depend on the matrix. Yes, it is like
you received a life sentence at that point, and I think it
states that in the bill."
Tape Recording, Senate Committee on Justice, July 23, 1981,
HB 3262A, Tape 315A. A week later, legislators engaged in a
colloquy that the Court of Appeals described as follows:
"At a conference committee hearing on the bill on August 1,
1981, in which the committee was reviewing the final
changes in the bill, Senator Jan Wyers explained that,
under the proposed revisions, the prisoner would not 'get to
the parole board before the 15 or 20 years had been served,'
and that 'at the end of the 15 or 20 years then they could set
a date.' Tape Recording, Senate Committee on Justice,
Conference Committee on SB 526, Aug 1, 1981, Tape 329A
(statement of Sen Jan Wyers) * * *. Representative Dick
Springer added that, after the board reached a decision that
a prisoner was likely to be rehabilitated, 'then it would be
treated as a regular homicide, not aggravated, in which the
matrix would apply. And we felt reasonably confident that
the matrix guidelines were sufficient if the person had
already served the minimum, which in any event, would be
15 years, 	then 	the 	matrix 	would provide 	additional
guidelines to the parole board.' Tape Recording, Senate
Committee on Justice, Conference Committee on SB 526,
Aug 1, 1981, Tape 329A (statement of Rep Dick Springer).''
Fleming, 225 Or App at 598-99 (emphasis added; Court of
Appeals' emphasis omitted).
In light of the facts that the matrix provided the only
available mechanism for the board to make parole release
decisions at the time that Janowski and Fleming committed
their crimes, and that no other statutes offered the board a
source of authority for making parole release decisions for
prisoners whose aggravated murder sentences were con-
verted to life in prison with the possibility of parole, we do not

Cite as
think that the legislature intended by its silence on the mat-
ter in ORS 163.105 (1985) to indicate that it meant the board
to use some unidentified alternative to the matrix system to
set parole release dates for prisoners whose terms of confine-
ment were converted to life in prison with the possibility of
parole. Indeed, as noted, the legislative history demonstrates
that the legislature understood that the matrix would apply
in those cases. For all those reasons, we conclude that the leg-
islature intended the board, having converted the terms of a
prisoner's confinement to life in prison with the possibility of
parole, to set a release date in accordance with the parole
matrix in place when the prisoner committed his offense.
Notwithstanding the foregoing statutory require-
ments, the board has noted that it had no rules applicable to
prisoners whose terms of confinement had been converted in
this way. It has contended that it designated aggravated
murder as an "unclassified" felony, for which no crime sever-
ity rating or matrix range applied, and it had no rules specif-
ically governing release on parole for prisoners who were con-
victed of aggravated murder during the relevant time frame.
As noted, the Court of Appeals found that argument compel-
ling. The Court of Appeals pointed to this court's decision in
Engweiler v. Board of Parole, 343 Or 536, 175 P3d 408 (2007),
in which this court stated that, in 1985, the board had
enacted rules that
"did not provide for a proceeding in which a parole date
would be determined until after the inmate had served the
minimum term of confinement imposed pursuant to ORS
163.105(1) (1985). In effect, the rules did not anticipate the
need to do so for any person convicted of aggravated
murder."
Id. at 540. Based on that statement, the Court of Appeals
held that the case should be remanded to the board for that
agency to "reevaluate which, if any, of its authorizing stat-
utes properly apply to petitioner's circumstance, in light of
[the court's] interpretation of ORS 163.105 (1985)." Fleming,
225 Or App at 599-601; see also Janowski, 226 Or at 83 (to
same effect). However, neither the absence of agency rules
establishing procedures for setting release dates for inmates
whose terms of confinement had been converted, nor the
board's 	decision to designate aggravated murder as 	an

454 	Janowski/Fleming v. Board of Parole
"unclassified" felony, changes the board's obligations under
the statute to establish a matrix range and set parole release
dates for those prisoners.
In 	addition, 	and 	importantly, 	even 	though 	the
board's rules did not prescribe a procedure for setting release
dates after a prisoner's terms of confinement were converted
pursuant to ORS 163.105(3) (1985), its rules did provide for
the establishment of matrix ranges for both Janowski and
Fleming. First, as noted above, when Janowski committed
his crimes, aggravated murder still was a "classified felony,"
and there was an assigned crime severity rating and matrix
range for that crime. See OAR ch 255, Exhibit A, Part I,
Offense Severity Under Rule 255-35-010 (1982). Moreover,
board rules at that time specifically required it to set a matrix
range for aggravated murder. Former OAR 255-030-0012
(1982), repealed May 31, 1985, provided:
"(1} Those persons sentenced under ORS 163.095 for
aggravated murder shall be seen at a prison term hearing
within six months of confinement at a state institution."
The phrase "prison term hearing" was defined in OAR 235-
30-005(1) (1982) as
"[t]he hearing given a prisoner within six months of admis-
sion to a correctional institution at which the Board estab-
lishes a prison term to be served according to the guidelines
ranges."
And, in Janowski's case, as noted, the board held a prison
term 	hearing 	within 	six 	months 	of his 	incarceration
and established a matrix range according to the "guide-
lines ranges" 19 that were in effect when he committed his
offense.
In May 1985, after Janowski committed his crimes
but before Fleming committed his, the board amended its
rules to designate aggravated murder as "unclassified," but it
19 The phrase "guidelines ranges" was defined as "[r)anges of months to be
served as a prison term before parole release for each offense severity rating and
history/risk score." OAR 255-35-005(3) (1982); see OAR 255-35-005(3)(1985)(same,
except for use of term "crime severity" rating). The ranges themselves were set out
in Exhibit C to those rules. The ranges set out in Exhibit C were based on the crime
severity rating for the particular offense as set out in Exhibit A to the same rules.

Cite as 	455
continued to assign a crime severity rating to that crime.
OAR ch 255, Exhibit A, Crime Severity Ratings (1985). 20 We
think that the designation of aggravated murder as "unclas-
sified" is irrelevant for our purposes here. At that time, the
board also designated ordinary murder (under ORS 163.115
(1985)) as "unclassified," but the board clearly was required
in certain circumstances to apply the matrix for prisoners
convicted of that crime. See ORS 163.115(3)(d) (1985) (giving
board authority to set aside mandatory minimum sentence
for murder). And, in fact, at Fleming's prison term hearing,
the board established a matrix range for him. Thus, we do not
find the board's designation of aggravated murder as unclas-
sified to be helpful to our analysis.
In addition, at the time that Fleming committed his
crime, OAR 255-32-005 (1985) provided (similar to OAR 255-
030-0012 (1982), repealed May 31, 1985):
"A person convicted of Aggravated Murder under ORS
163.095 shall receive a prison term hearing under the pro-
visions of Division 30 of these rules."
Division 30, in turn, implemented ORS 144.120 and provided
a definition of the phrase "prison term hearing":
"The hearing given a prisoner within six (6) months of
admission to a correctional institution at which the Board
establishes a prison term to be served according to the
guideline ranges."
OAR 255-30-005(1) (1985). 21
Taking all of the foregoing together, we are satisfied
that the board's rules in effect when Janowski and Fleming
committed their offenses did include rules for applying the
matrix to persons convicted of aggravated murder, even if
there was no specific, separate procedure in place under the
20 In fact, all the versions of the Crime Severity Ratings (Exhibit A) in effect
from 1985 through 1991 designate aggravated murder as "unclassified" but set out
a crime severity rating for that crime. In 1992, the last year that the board's rules
included Exhibit A, aggravated murder was designated as "unclassified," but no
crime severity rating was set out for that crime.
21 Division 30 of OAR chapter 255 did not contain any exceptions for prisoners
who had been convicted ofaggravated murder, nor could it, given that ORS 144.120
(1985) contained no such exception. See ORS 183.400(4)(b) (court shall declare rule
invalid if it exceeds the statutory authority of the agency).

456 	Janowski/Fleming v. Board of Parole
board's rules for conducting a hearing to set a release date for
them when the terms of their confinement were converted to
life with the possibility of parole. The contrary conclusion of
the Court of Appeals was incorrect. That does not end the
matter, however. The question remains what the board
should do now with respect to those prisoners whose terms of
confinement were converted to life imprisonment with the
possibility of parole and, specifically, what it should do with
prisoners such as Janowski, whose matrix ranges already
have expired. Janowski argues that he must be released
immediately on parole.
In general, as described above, under the matrix sys-
tem, the board calculated a matrix range for inmates within
six months of their incarceration. ORS 144.120(1), (2) (1985).
ORS 144.120(1) also required the board to set a parole
release date for all prisoners (although ORS 144.120(4)
(1985) allowed the board to choose not to set a parole release
date in certain specified circumstances). However, under
ORS 144.110(2), notwithstanding ORS 144.120, the board
did not have authority to release a prisoner before the expi-
ration of a mandatory minimum term of imprisonment,
except under the specific conditions that we have described
at length above. In the present cases, the board initially
set parole release dates for Janowski and Fleming at the
end of their mandatory minimum terms, but it withdrew
those release dates in later orders. Accordingly, at this point,
there is no set release date in place for either Janowski or
Fleming.
It follows from our discussion and holdings above
that the board must now conduct a hearing, using whatever
procedures it deems appropriate, 	to set each prisoner's
release date according to the matrix in effect when he com-
mitted his crime. Because the matrix range in Janowski's
case already has expired, we anticipate that the release date
in his case will be set in the near future. The obvious question
that arises, however, is whether the board may choose not to
set a release date as provided in ORS 144.120(4) (1985), on
the 	theory that Janowski is "a prisoner whose offense
included particularly violent or dangerous criminal conduct."
We express no opinion on the issue.

Cite as 349 Or 432 (2010) 	457
Once the date is set, it can be postponed only for
three 	statutorily 	prescribed 	reasons. 	First, 	under 	ORS
144.125(2) (1985), the board must postpone a prisoner's
release date if it finds that the prisoner had engaged in seri-
ous misconduct during confinement. The board also is per-
mitted, but not required, to postpone a release date if the
prisoner received a psychiatric or psychological diagnosis of a
severe emotional disturbance that would make him a danger
to the community, ORS 144.125(3) (1985), or if it deems the
prisoner's release plan to be inadequate, ORS 144.125(4)
(1985). 22
In 1985, the legislature added a prov1s1on to the
applicable statutes that made it clear that a prisoner must be
released on his or her parole release date:
"When the State Board of Parole has set a date on which a
prisoner is to be released upon parole, the prisoner shall be
released on that date unless the prisoner on that date
remains subject to an unexpired minimum term during
which the prisoner is not eligible for parole, in which case
the prisoner shall not be released until the expiration of the
minimum term."
ORS 144.245(1) (1985). Under that statute, "if a prisoner
does not have an unexpired minimum term, then the pris-
oner must be released on the scheduled release date" unless
one of the grounds for postponement of a release date set out
in ORS 144.125 is present. Hamel, 330 Or at 187 (emphasis
in original).
That statute applies to Fleming, but not to Janowski.
Nonetheless, 	we 	think 	that 	that 	statute 	represents 	a
22 ORS 144.125 (1985) provided, in relevant part:
"(2) The board shall postpone a prisoner's scheduled release date if it
finds, after a hearing, that the prisoner engaged in serious misconduct during
confinement. * * *.
"(3) If a psychiatric or psychological diagnosis of present severe emotional
disturbance such as to constitute a danger to the health or safety of the com-
munity has been made with respect to the prisoner, the board may order the
postponement of the scheduled parole release until a specified future date.
"(4) Each prisoner shall furnish the board with a parole plan prior to the
scheduled release of the prisoner on parole. The board * * * may defer release
of the prisoner for not more than three months if it finds that the parole plan is
inadequate."

458 	Janowski/Fleming v. Board of Parole
clarification of existing law rather than a change in the law.
That is so because, other than ORS 144.110(2) (1983) (pro-
scribing the board's authority to release a prisoner subject to
a minimum term of imprisonment) and ORS 144.125(2) - (4)
(1983) (setting out three grounds for postponing a prisoner's
parole release date), the parole and matrix statutes provided
the board with no authority to continue to imprison an
inmate after the expiration of the parole matrix range. See
also ORS 144.120(1) (1983) ("Release shall be contingent
upon satisfaction of the requirements of ORS 144.125.").
Board rules applicable to Janowski are consistent with that
understanding. Under former OAR 255-035-005(5) (1982), a
" '[p]arole release date' [is a] fixed date, by month and year,
assigned to a prisoner for parole release based on the guide-
line range for his/her particular offense severity rating and
history/risk score. A parole release date can only be
changed following 	a 	hearing for reasons 	specified in
Division 60 and ORS 144.126 [sic 23 ]. The parole release date
ends on the last day of the designated month and year."
In this case, we have held, under ORS 163.105(3)
(1985), 	that 	the 	board's 	conversion 	of Janowski's 	and
Fleming's terms of confinement to life in prison with the pos-
sibility of parole, based on its findings that each was likely to
be rehabilitated in a reasonable time, overrode their 30-year
mandatory minimum sentences. Thus, neither continues to
be subject to an unexpired minimum term. It follows that the
only 	statutory 	authority 	for 	continuing 	to 	incarcerate
Janowski or Fleming after a parole release date is ORS
144.125 (1985). 24
23 We presume that the board meant ORS 144.125. Division 60 implemented
the release deferral provisions of ORS 144.125 (2), (3), and (4). The reference to
ORS 144.126 was a typographical error, apparently. No section 126 ever has
existed.
24 It could be argued that, because ORS 163.105(2) and (3) refer to a finding
that a prisoner is "likely to be rehabilitated" or "capable ofrehabilitation," the pris-
oners cannot be released until the board actually finds that they are rehabilitated.
The trouble with that notion, however, is that ORS 163.105(3) conditions the con-
version of the terms of the prisoner's confinement only on the board's inchoate
"likely" or "capable" finding: Once the board makes that specific finding, it "shall"
convert the terms of the prisoner's confinement to life imprisonment with the pos-
sibility of parole. And once the terms of confinement are so converted, the prisoner
immediately begins serving that term and the matrix rules begin to apply. There is
no statutory or regulatory authority for any further procedure to determine actual
rehabilitation or for conditioning parole release on such a determination, and

Cite as 349 Or 432 (2010) 	459
Janowski states that, under ORS 144.125(1) (1985),
the board may conduct an exit interview to determine if any
of the circumstances warranting postponement of the release
date are present, and, he argues, that exit interview must
occur, if at all, before the expiration of his matrix range.
Because his matrix range had expired before the board found
him to be capable of rehabilitation, he argues, the scheduled
release date was the date of that board finding, at the latest.
Because the board did not hold such an interview at that
time, he reasons, it cannot hold one at all, and he is entitled
to be released immediately.
Janowski's argument misreads the statute and fails
to take into account that the board has not yet set his parole
release date; rather, the board must conduct a hearing in the
immediate future to do so. And, in any event, ORS 144.125(1)
(1985) provides that, ''prior to the scheduled release of any
prisoner," the board may interview the prisoner to determine
if any of the statutory grounds for postponement of a parole
release date are present. The phrase "scheduled release" is
not defined in the statute or in the applicable regulations.
However, the plain and natural meaning of that phrase is the
date that the board ultimately schedules for the prisoner's
release. Again, in this case, Janowski still is incarcerated; the
board has not yet scheduled his release. 25 Once the board sets
Janowski's release date, it will have an opportunity to inter-
view him to determine whether any of the grounds for post-
ponement of his release are present. However, if, after con-
ducting such an interview, the board concludes that none of
the statutory grounds for postponement is present, the board
must release Janowski on parole on his release date. 26
neither we nor the board are permitted to add any such procedure to the statutes or
rules.
25 Indeed, given its previous interpretation of the applicable statutes, it would
not have been possible for the board to schedule Janowski's release before the issu-
ance of this opinion.
20 This court's decision in Roy v. Palmeteer, 339 Or 533, 124 P3d 603 (2005), is
not to the contrary. In that case, this court held that the petitioner was not entitled
to immediate release on habeas corpus simply because the board had determined
that he was likely to be rehabilitated in a reasonable time under ORS 163.105(3).
The petitioner had argued that that result was compelled by this court's earlier
decision in Norris, 331 Or at 196-208 (holding that prisoner who was serving two
consecutive 30-year mandatory minimum sentences began serving second one on
day board found him to be capable of rehabilitation in first). This court rejected

460 	Janowski/Fleming v. Board of Parole
The decision of the Court of Appeals in both cases is
affirmed in part and reversed in part. The orders of the Board
of Parole and Post-Prison Supervision are affirmed in part
and reversed in part, and the cases are remanded to the
Board of Parole and Post-Prison Supervision for further
proceedings.
that argument in Roy, holding only that Norris did not purport to establish any
rule that a finding of rehabilitation automatically required immediate release of
the prisoner. The court did not discuss whether the board's finding oflikelihood of
rehabilitation would override the prisoner's 30-year mandatory minimum sen-
tence, whether the matrix would be applicable to the board's parole release deci-
sion for the prisoner in Roy, or whether the matrix range for the prisoner in Roy
had expired. We therefore do not find Roy to be controlling.