GILLETTE, J.
These two cases, which we have consolidated for purposes of opinion, present two issues, both of which concern 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.
The relevant facts of each case are procedural and are not in dispute. Prisoner Janowski murdered his parents 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 during 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)
Both Janowski and Fleming were sentenced to life imprisonment. Pursuant to the directive in ORS 163.105(1) (1985), the trial courts ordered each of them to serve a mandatory minimum 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
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 of time.
Each prisoner requested administrative review, arguing, among other things, that ORS 163.105(3) (1985) gave the board authority to override the statutorily mandated 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 committed 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 consequent conversion of the terms of his imprisonment, he 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 mandatory minimum sentence for aggravated murder. Janowski and Fleming seek review of that part of those decisions remanding the
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 erroneously interpreted that provision of law. 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 P.3d 1042 (2009).
As noted above, at the time that Fleming and Janowski committed their offenses, ORS 163.105 (1985) provided, in relevant part, as follows:
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 mandatory 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 subsection (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 reference to rehabilitation in a "reasonable time." That is, the legislature could have referred to rehabilitation in the 10 years that would remain before expiration of the minimum 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.
If doubt remains, subsection (3) settles it. That subsection states that the board, if it finds that the prisoner is "capable of rehabilitation," "shall" enter an order that "convert[s] the terms of the prisoner's confinement to life imprisonment 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.
ORS 163.105(3) (1985) states that, if the 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 possibility 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.
ORS 144.110, which deals with restrictions on paroling 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:
In subsection (1), the legislature granted trial courts discretion 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 effectively overriding those mandatory minimum sentences. The 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 members
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 contemplated that prisoners, even those who had been convicted of aggravated murder, could be released on parole if the conditions set out in paragraphs (a) and (b) were met.
Thus, and as ORS 144.110(2)(a) (1985) (discussed above) also shows, the legislature did not intend for a trial court's imposition of a mandatory minimum sentence to preclude the board from releasing a prisoner on parole before that sentence expired.
Based on the foregoing, we conclude, at this point in our analysis, that text and context indicate that the legislature 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 consider 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, 291 Or. 153, 164, 630 P.2d 796 (1981), the court assumed that an inmate convicted of aggravated murder 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 mandatory minimum sentence for aggravated murder. Similarly, in State v. Wille, 317 Or. 487, 503 n. 12, 858 P.2d 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.
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 therefore 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 prisoners'] circumstances, in light of [its] interpretation of ORS 163.105 (1985)." Fleming, 225 Or. App. at 601, 202 P.3d 209; see Janowski, 226 Or.App. at 83, 202 P.3d 920 (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
ORS 163.105 (1985) did, however, contain a reference 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 "notwithstanding" 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, 178, 864 P.2d 368 (1993) ("The function of the `notwithstanding' 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 murder 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 converted 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 sentences 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 statutes governing the matrix system in ORS chapter 144.
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 treated those prisoners whose sentences of life 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)
In 1985, those provisions contained no exception for prisoners serving a mandatory minimum sentence or for prisoners who had been convicted of aggravated murder or murder:
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 aggravated 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 murder 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 discussing the effect of that floor, Senator Wallace P. Carson, Jr., stated, in somewhat colloquial terms, that,
Id.
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
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, 202 P.3d 209, 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 legislators 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 mandatory minimum sentence in that context with witness Jerry Cooper of the Oregon District Attorneys Association:
Tape Recording, Senate Committee on Justice, HB 3262A, July 23, 1981, Tape 315A. A week later, legislators engaged in a colloquy that the Court of Appeals described as follows:
Fleming, 225 Or.App. at 598-99, 202 P.3d 209 (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 converted to life in prison with the possibility of parole, we do not think that the legislature intended by its silence on the matter 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 confinement 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 legislature 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 requirements, 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 severity rating or matrix range applied, and it had no rules specifically governing release on parole for prisoners who were convicted of aggravated murder during the relevant time frame. As noted, the Court of Appeals found that argument compelling. The Court of Appeals pointed to this court's decision in Engweiler v. Board of Parole, 343 Or. 536, 175 P.3d 408 (2007), in which this court stated that, in 1985, the board had enacted rules that
Id. at 540, 175 P.3d 408. 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 statutes 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, 202 P.3d 209; see also Janowski, 226 Or.App.
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:
The phrase "prison term hearing" was defined in OAR 235-30-005(1) (1982) as
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 "guidelines ranges"
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 continued to assign a crime severity rating to that crime. OAR ch. 255, Exhibit A, Crime Severity Ratings (1985).
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):
Division 30, in turn, implemented ORS 144.120 and provided a definition of the phrase "prison term hearing":
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 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 system, 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 expiration 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 committed 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.
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 serious misconduct during confinement. The board also is permitted, 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).
In 1985, the legislature added a provision to the applicable statutes that made it clear that a prisoner must be released on his or her parole release date:
ORS 144.245(1) (1985). Under that statute, "if a prisoner does not have an unexpired minimum term, then the prisoner 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, 998 P.2d 661 (emphasis in original).
That statute applies to Fleming, but not to Janowski. Nonetheless, we think that that statute represents a clarification of existing law rather than a change in the law. That is so because, other than ORS 144.110(2) (1983) (proscribing 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
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 possibility 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).
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 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.
Fleming, 225 Or.App. at 585 n. 3, 202 P.3d 209. That analysis overlooks the fact that subsection (1) of ORS 163.105 is a directive to the trial court; it sets the mandatory minimum sentence 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 imposition 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 expiration of the mandatory minimum sentence originally imposed.
Hamel, 330 Or. at 185-87, 998 P.2d 661 (citations omitted).
