S057031, Opinion — Severy/Wilson v. Board of Parole

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Argued and submitted January 5, decisions of Court of Appeals reversed;
orders of Board of Parole and Post-Prison Supervision reversed, and
cases remanded to Board of Parole and Post-Prison Supervision
for further proceedings December 23, 2010

DONALD SEVERY,
Petitioner on Review /
Cross-Respondent on Review,
v.
BOARD OF PAROLE
AND POST-PRISON SUPERVISION,
Respondent on Review /
Cross-Petitioner on Review.
(CA A132525; SC S057031, S057516)
STEVEN R. WILSON,
Petitioner on Review /
Cross-Respondent on Review,
v.
BOARD OF PAROLE
AND POST-PRISON SUPERVISION,
Respondent on Review /
Cross-Petitioner on Review.
(CA A132856; SC S056674)
(Consolidated or argument and opinion)
245 P3d 119

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CJS, Pardon and Parole § 51.

# En Banc

On review from the Court of Appeals .*

Ryan T. O'Connor, Deputy Public Defender, Salem,
argued the cause and filed the brief for petitioner on review/
cross-respondent on review Donald Severy. With him on the
brief was Peter Gartlan, Chief Defender, Appellate Division,
Office of Public Defense Services.

Andy Simrin, Portland, argued the cause and filed the
brief for petitioner on review/cross-respondent on review
Steven R. Wilson.

Denise G. Fjordbeck, Attorney-in-Charge, Civil/Adminis-
trative Appeals, Salem, argued the cause and filed the brief
for respondent on review/cross-petitioner on review. With her
on the brief was John R. Kroger, Attorney General.

GILLETTE, J.

The decisions of the Court of Appeals are reversed. The
orders of the Board of Parole and Post-Prison Supervision are
reversed, and the cases are remanded to the Board of Parole
and Post-Prison Supervision for further proceedings.

\* On judicial review of Final Orders of the Board of Parole and Post-Prison
Supervision. 222 Or App 224, 193 P3d 32 (2008). 224 Or App 176, 197 P3d 59
(2008).

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# GILLETTE, J.

These two parole eligibility cases have been consoli-
dated in this court for purposes of opinion. They concern the
scope of authority of the Board of Parole and Post-Prison
Supervision (board) to consider for parole persons who had
been convicted of aggravated murder and sentenced to life in
prison with a minimum of 30 years imprisonment, but who,
20 years later, are found by the board to be capable of reha-
bilitation within a reasonable period of time. In Janowski /
Fleming v. Board of Parole, 349 Or 432, 446, 245 P3d
1270 (2010), we hold that the board has the authority to over-
ride a prisoner's 30-year mandatory minimum sentence for
aggravated murder and to release the prisoner after 20 years
in prison on a finding that the prisoner is capable of rehabil-
itation within a reasonable period of time. We also hold that,
in such an event, the board must use the applicable matrix
rules in effect at the time of the commission of the underlying
offenses to determine when the prisoner should be released.
Id. at 453. The two cases now before us involve an additional
circumstance not present in Janowski /Fleming, viz., each
prisoner was sentenced by a trial court to two consecutive life
sentences with 30-year mandatory minimum terms of
imprisonment for aggravated murder. Nonetheless, each
prisoner, after 20 years of imprisonment on the first of the
prisoner's consecutive sentences, was found by the board to
be capable of rehabilitation within a reasonable period of
time.

The Court of Appeals concluded that the outcome of
these cases was controlled by this court's decision in Norris v.
Board of Parole, 331 Or 194, 13 P3d 104 (2000), cert den, 534
US 1028 (2001). Given that decision, the Court of Appeals
held that when a prisoner has served 20 years of the first of
two consecutive life sentences with 30-year mandatory mini-
mum terms of imprisonment for aggravated murder and the
board finds that the prisoner is capable of rehabilitation
within a reasonable period of time and consequently converts
the terms of the prisoner's confinement to life with the possi-
bility of parole, that conversion applies only to the first of the
two consecutive sentences. Following this court's decision in
Norris, the Court of Appeals held that such a prisoner must
wait another 20 years before seeking a second rehabilitation

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hearing that could result in the conversion of the second sen-
tence. Wilson v. Board of Parole, 222 Or App 224, 228, 193
P3d 32 (2008); Severy v. Board of Parole, 224 Or App 176, 197
P3d 59 (2008) (affirming per curiam in light of Norris and
Wilson).

Both the board and the prisoners sought review of
those decisions, and we allowed their petitions for review.
The facts relevant to our disposition of these cases are proce-
dural and are not in dispute. In September 1984, prisoner
Severy killed his father and brother in the family home and
then set fire to the house to conceal his crimes.1 In May 1985,
a trial court convicted Severy of two counts of aggravated
murder and one count of arson. The court imposed two con-
secutive life sentences, each with a 30-year minimum term of
imprisonment, for the aggravated murder convictions, and a
further consecutive 10-year mandatory minimum sentence
on the arson conviction. In October 1985, the board issued an
order setting a matrix range for Severy's crimes of 270 to
376 months' imprisonment. At the same time, the board set a
release date in October 2054 for Severy's consecutive
360-month mandatory minimum sentences for aggravated
murder and his consecutive 120-month mandatory minimum
sentence for arson. In 1990, the board issued an order recal-
culating the matrix range for Severy's crimes as 222-280
months' imprisonment, but also concluding that it had
improperly set a release date when it only should have set a
review hearing date and noting that there was no matrix
range for those convicted of aggravated murder. No party
sought judicial review of that order.

1 As we explain in the text below, Wilson committed his crimes in February
1985. In November 1984, the voters passed an initiative measure amending ORS
163.105 to include the death penalty as a possible sanction for aggravated murder.
In addition, among other things, that initiative measure eliminated the preexisting
20-year mandatory minimum sentence that ORS 163.105 (1981) permitted a trial
court to impose for certain types of aggravated murder not at issue here, and
included other conforming amendments. By proclamation of the governor, that
measure took effect on December 6, 1984; accordingly, the 1985 version of ORS
163.105 applies to crimes committed after December 6, 1984. That is, the 1985 ver-
sion of ORS 163.105 applies to Wilson's case.

Severy committed his crimes in September 1984 and, therefore, the 1981 ver-
sion of the statute applies to his case. However, because the 1985 amendments to
ORS 163.105 do not affect our analysis of Severy's case in any way, we will, for con-
venience, simply refer to the 1985 version at all times in this opinion.

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In February 1985, prisoner Wilson shot and killed
his friend's parents.2 In October 1986, a trial court convicted
Wilson of four counts of aggravated murder, merged those
four counts into two counts for purposes of sentencing, and
then imposed two consecutive life sentences, each with a
30-year minimum term of imprisonment. In March 1987, the
board conducted a hearing respecting Wilson's incarceration.
It established a matrix range of 240 to 336 months' impris-
onment, set a parole release date in December 2044, and sus-
tained Wilson's consecutive 30-year mandatory minimum
sentences. As it had in Severy's case, the board later with-
drew that part of its order setting a release date as inconsis-
tent with the aggravated murder statute, set a review date
instead, and withdrew its calculation of a matrix range on the
ground that there was no matrix range for those convicted of
aggravated murder. Again, no party sought judicial review of
that order.

After Severy and Wilson had been incarcerated for
20 years, each sought and was given a hearing under ORS
163.105(2) (1985),3 a statute permitting prisoners who had
received 30-year mandatory minimum sentences for aggra-
vated murder to petition for a hearing before the board to
determine whether they were "likely to be rehabilitated
within a reasonable time."4 At the conclusion of those hear-
ings, the board unanimously found that each prisoner had
made the requisite showing of likelihood of rehabilitation. In
each case, the board then entered an order converting the
terms of the prisoners' confinement on the first of the two
consecutive 30-year mandatory minimum sentences to life
imprisonment with the possibility of parole, as required by
ORS 163.105(3) (1985). And, on the implicit assumption that
the prisoners were beginning at that point to serve the sec-
ond consecutive 30-year mandatory minimum sentence, the
board informed both Severy and Wilson that they could peti-
tion the board again in 20 years for a change in the terms of

2 Wilson's codefendant is one of the prisoners involved in Janowski / Fleming,
the companion to this case.

3 We set out the text of ORS 163.105 (1985) later in this opinion.

4 Severy's hearing was held in November 2004; Wilson's was held in October
2005.

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confinement for their second sentences.5 Both Severy and
Wilson sought administrative review of those orders, argu-
ing, among other things, that ORS 163.105(3) (1985) directed
the board to override the judicially imposed mandatory min-
imum sentence for both aggravated murder sentences upon
the board's finding that the prisoner was capable of rehabili-
tation within a reasonable time. The board rejected those
arguments.

Both Severy and Wilson sought judicial review of the
board rulings in the Court of Appeals, which, as noted, held
in each instance that the case was controlled by this court's
decision in Norris. The board seeks review in Severy's case,
arguing that applicable statutes do not permit the board to
override the 30-year mandatory minimum sentences for
aggravated murder and that the Court of Appeals should not
have relied on Norris because, in its view, Norris was
wrongly decided. Severy and Wilson also seek review, con-
tending that the board did have the authority to override the
mandatory minimum sentences for aggravated murder, but
likewise contending that Norris was wrongly decided, albeit
in a different way than that argued by the board.

In Janowski / Fleming, this court today addresses
the issue of the board's authority, under ORS 163.105 (1985),
to override a 30-year mandatory minimum sentence and to
set a prisoner's eligibility for release on parole after 20 years
if it finds that the prisoner is likely to be rehabilitated within
a reasonable time. ORS 163.105 (1985) required the trial
court to impose a 30-year mandatory minimum sentence for
persons who had been sentenced to life imprisonment for
aggravated murder. However, it further provided:

"(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

" In addition, the board reminded Severy that he must serve his 120-month
mandatory minimum sentence on the arson conviction after he is released from
incarceration on both aggravated murder convictions.

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or not the prisoner is likely to be rehabilitated within a
reasonable period of time. * *

"(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."

In Janowski / Fleming, we hold that that statute does give the
board authority to make a prisoner who had been sentenced
by a court to a 30-year minimum prison term for aggravated
murder eligible for release after he has served 20 years in
prison, if it finds that the prisoner is capable of rehabilita-
tion. Based on that holding, we reject the board's contrary
argument here.

We therefore turn to the question that is central to
these two consolidated appeals: What is the effect of our hold-
ing in Janowski/Fleming on cases in which a prisoner has
been convicted of more than one aggravated murder and in
which the trial court ordered the prisoner to serve consecu-
tive sentences of life in prison with 30-year mandatory mini-
mum terms of imprisonment? Because the Court of Appeals
concluded that the answer to that question was controlled by
this court's earlier decision in Norris, and because all parties
in this case argue that Norris was wrongly decided, we begin
with a brief summary of the facts in Norris and its principal
holdings.

In Norris, the prisoner had committed two aggra-
vated murders and one attempted murder in 1978. After he
was convicted of those crimes in 1979, the trial court imposed
two consecutive life sentences on the aggravated murder
counts, each to be served without the possibility of parole for
20 years. (Such sentences were authorized under ORS
163.105(2) (1977).) The court also imposed a concurrent
20-year term of imprisonment on the attempted murder con-
viction. At the time that Norris committed his crimes, ORS

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163.105(3) (1977) permitted a prisoner who had been con-
victed of aggravated murder under ORS 163.105(2) (1977) to
seek a hearing before the board after 15 years of incarceration
to determine if he was likely to be rehabilitated within a
reasonable period of time. Subsection (4) of that same statute
provided that, if the board found that the prisoner was capable
of rehabilitation and that the terms of his confinement should
be changed to life in prison with the possibility of parole, the
board was required to enter an order to that effect.6

In 1993, after Norris had been incarcerated for
15 years, he sought and was granted a rehabilitation hear-
ing, and the board found that he was likely to be rehabili-
tated within a reasonable period of time. The board set a
release date for July 2018, after Norris had served the judi-
cially ordered 40 years in prison (i.e., after he had served two
consecutive 20-year mandatory minimum terms). Norris
petitioned for judicial review in the Court of Appeals.

While judicial review was pending, the board with-
drew its order for reconsideration. Ultimately, the board

6 In all respects relevant to our analysis here, ORS 163.105 (1977) was similar
to ORS 163.105 (1985), the version in effect at the time that Severy and Wilson
committed their crimes. ORS 163.105 (1977) provided:

"(1) When a defendant is convicted of murder defined as aggravated mur-
der pursuant to subsection (1) of ORS 163.095, the court shall order that the
defendant shall be confined for a minimum of 30 years without the possibility
of parole * * *.

"(2) When a defendant is convicted of murder defined as aggravated mur-
der pursuant to subsection (2) of ORS 163.095, the court shall order that the
defendant shall be confined for a minimum of 20 years without the possibility
of parole * * *.

"(3) At any time after 20 years from the date of imposition of a minimum
period of confinement pursuant to subsection (1) of this section, or at any time
after 15 years from the date of imposition of a minimum period of confinement
pursuant to subsection (2) of this section, the State Board of Parole, upon the
petition of a prisoner so confined, shall hold a hearing to determine if the pris-
oner 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) If, upon hearing all the evidence, the board finds that the prisoner is
capable of rehabilitation and that the terms of his confinement should be
changed to life imprisonment with the possibility of parole, or work release, it
shall enter an order to that effect. Otherwise, the board shall deny the relief
sought in the petition."

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issued an order on reconsideration making two findings.
First, it reiterated its finding that Norris was capable of reha-
bilitation within a reasonable time; consequently, it applied
the matrix then in effect and concluded that the appropriate
matrix range for both counts of aggravated murder was 20 to
28 years, which was less than Norris's judicially ordered
40-year minimum prison term. Second, it found that it should
not alter Norris's minimum term of confinement, because
20 years for each count was the appropriate sanction for
Norris's criminal conduct and was necessary for the protec-
tion of the public.

Norris renewed his petition for judicial review in the
Court of Appeals. Among other things, Norris argued that,
because the board had found him to be capable of rehabilita-
tion, the minimum terms imposed by the trial court were
"nullified" and the board had to use the matrix system to set
a release date. The board, in response, contended that ORS
163.105(4) required it to make two independent and coequal
findings before it could change the terms of a prisoner's con-
finement: "(1) that [the prisoner] was capable of rehabilita-
tion and (2) that the terms of confinement should be changed
to life with the possibility of parole." Norris, 331 Or at 200
(emphasis added). Alternatively, the board argued that, even
if the issue were unitary and it therefore was required to
change the "terms of [the prisoner's] confinement," it still had
no authority to override the consecutive, 20-year mandatory
minimum sentences. After considering those arguments, the
Court of Appeals ruled that a decision by the board that a
prisoner was likely to be rehabilitated within a reasonable
period of time necessarily included a finding that the terms of
confinement must be changed. Norris v. Board of Parole, 152
Or App 57, 66, 952 P2d 1037 (1998). However, the court did
not go on to direct the board to take any particular action.
Instead, it remanded the case to the board for further pro-
ceedings. Id. at 66-67. Norris then sought review in this
court.

This court in Norris began by considering what the
board was required to find at a rehabilitation hearing under
ORS 163.105 (1977) and ultimately held "that the legislature
intended that, in a hearing held under ORS 163.105(3)
(1977), the Board must find only whether the prisoner is

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capable of rehabilitation." Norris, 331 Or at 207. The court
then turned to consider the effect of that conclusion on
Norris, who was subject to two consecutive 20-year manda-
tory minimum sentences. The court's analysis in that regard
was as follows:

"ORS 163.105(4) (1977) requires the Board to change
the 'terms of * * * confinement' to life imprisonment with
the possibility of parole. That subsection does not define
that phrase. The word 'terms,' as used in the subsection,
could refer to the conditions of his confinement. See
Webster's Third New Int'l Dictionary [unabridged ed 1993]
at 2358 (defining 'terms,' in part, as 'conditions'). Looking to
ORS 163.105(2) (1977), however, we conclude that the
meaning of 'terms of * * * confinement' is clear.

"ORS 163.105(2) (1977), the subsection under which
[Norris] was sentenced, provides the sentence for one
murder (a single crime): '[w]hen a defendant is convicted of
murder defined as aggravated murder pursuant to subsec-
tion (2) of ORS 163.095 *** ' (Emphasis added.) ORS
163.105(2) (1977) is specific regarding the sentence for such
a murder: 'the court shall order that the defendant shall be
confined for a minimum of 20 years without possibility of
parole, release on work release, temporary leave or employ-
ment at a forest or work camp.' The imposition of that spe-
cific sentence eventually may trigger the rehabilitation
hearing described in ORS 163.105(3) and (4) (1977). If, at
such a rehabilitation hearing, the prisoner proves by a pre-
ponderance of the evidence that the prisoner is likely to be
rehabilitated within a reasonable period of time, then the
Board must change the 'terms of * * * confinement'-that
is, the sentence imposed under ORS 163.105(2) (1977) for
one aggravated murder-to life with the possibility of
parole or work release.

"Applying that analysis to this case, we conclude that
the Board must change the first of [Norris's] life sentences
to life with the possibility of parole or work release. [Norris]
is entitled to have that change occur retroactively to
January 26, 1994, the date that the Board found him to be
capable of rehabilitation. On that date, [Norris] began serv-
ing his second life sentence with a 20-year minimum term
of confinement for his second conviction of aggravated mur-
der. In 2009, 15 years from the date that he began serving
that 20-year minimum term, [Norris] may petition for a

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rehabilitation hearing, and that hearing also will be gov-
erned by ORS 163.105(3), (4), and (5) (1977). Only if the
Board again finds that [Norris] is capable of rehabilitation
within a reasonable period of time, must the Board change
[Norris's] second aggravated murder sentence to life with
the possibility of parole and work release. Only at that
point would [Norris] become eligible for parole.

"In sum, in a rehabilitation hearing under ORS 163.105
(1977), the only finding that the Board must make is
whether the prisoner is capable of rehabilitation. If the
Board finds that the prisoner is capable of rehabilitation,
then the Board must change the prisoner's aggravated-
murder sentence to life with the possibility of parole. In this
case, [Norris] received two life sentences without the possi-
bility of parole for 20 years, the second sentence to be served
consecutively to the first. Given its finding regarding
[Norris's] capability of rehabilitation, the Board should
have changed one of those sentences to life with the possi-
bility of parole. [Norris] may petition for a second rehabili-
tation hearing after he serves 15 years of his second aggra-
vated-murder sentence. ORS 163.105(3) (1977). Because
[Norris] is not eligible for parole unless the Board finds him
capable of rehabilitation at that second hearing, we express
no opinion in this case regarding either the applicability of
the matrix or whether the Board erred in its findings in
aggravation."

Norris, 331 Or at 207-08 (emphasis and ellipses in original).

The board complains that, in the foregoing passage,
the court held, without any explanation or analysis, that the
prisoner's second mandatory minimum sentence began to
run the moment that the board found that he was capable of
rehabilitation, and nothing in the statute or its context sug-
gests that result. The board also criticizes that passage for
concluding, at one point, that the board's "likely to be reha-
bilitated" finding means that a prisoner who is subject to two
consecutive mandatory minimum sentences is "entitled" to
begin serving the second sentence, but stating elsewhere that
he merely is "eligible" for parole on such a finding.

The prisoners, for their part, point out that the plain
words of ORS 163.105(3) (1977) required the board to conduct
Norris's rehabilitation hearing 15 years "from the date of
imposition of a minimum period of confinement pursuant to

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subsection (2) of this section," and that the trial court had
"imposed" both of Norris's consecutive sentences on the same
date. Under the plain words of the statute, therefore, the
board was required to conduct the rehabilitation hearing for
both aggravated murder sentences at the same time. They
argue that the court ignored that statutory wording entirely
when, in the passage quoted above, it required Norris to wait
another 15 years, and to seek a second rehabilitation hearing
on the second aggravated murder sentence, before he could
become eligible for parole under ORS 163.105 (1977).

In addition to the foregoing criticisms of the court's
reasoning in Norris (some of which, as we shall explain, we
find to be well taken), we observe that the court's analysis
seems to have gone astray on another point as well. The court
emphasized that, because ORS 163.105(2) (1977) (the subsec-
tion under which Norris was sentenced) referred to a "defen-
dant [ ] convicted of murder," that statute "provide[d] the
sentence for one murder (a single crime)." Norris, 331 Or at
207 (emphasis by the Norris court). The court also stated,
"ORS 163.105(2) (1977) is specific regarding the sentence for
such a murder." Id. From those undisputed points, which
have nothing necessarily to do with the appropriate sentence
for multiple counts of aggravated murder, the court made an
illogical leap to the conclusion that a prisoner could receive a
rehabilitation hearing under ORS 163.105(3) and (4) (1977)
for only the first of two consecutive mandatory minimum sen-
tences. Nothing in ORS 163.105(3) or (4) (1977) supports that
conclusion. On the contrary, as discussed, the plain words of
ORS 163.105(3) (1977) required the hearing to be held
15 years after the "imposition of a minimum period of con-
finement," and, as noted, at Norris's sentencing, the trial
court "imposed" the minimum period of confinement for each
of the two aggravated murders simultaneously.

In addition, the court assumed, without any real
analysis, that the phrase "terms of * * * confinement" as used
in ORS 163.105(4) meant "the sentence imposed under ORS
163.105(2) (1977) for one aggravated murder." Norris, 331 Or
at 207. Based on that understanding, the court then con-
cluded that the board "should have changed one of [Norris's]
sentences to life with the possibility of parole." Id. at 207-08.

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As we explain below, we now conclude that that assumption
is incorrect.

Although this court makes every attempt to adhere
to precedent, in accordance with the doctrine of stare decisis,
it has, from time to time, found an earlier interpretation of a
statute to be so deficient that it has concluded that some
reexamination of the prior statutory construction was appro-
priate. See, e.g., Holcomb v. Sunderland, 321 Or 99, 105, 894
P2d 457 (1995) (reexamination was necessary because all the
stated bases for the decision either did not apply, or were no
longer correct because of later statutory enactments, or pro-
vided only marginal support for the conclusion); see also State
v. Sandoval, 342 Or 506, 512-13, 156 P3d 60 (2007) (abrogat-
ing earlier case interpreting statute because it did not exam-
ine the words of the statute and it relied on irrelevant parts of
the legislative history). This is such a case: The court's stated
bases for the part of the decision in Norris concerning the
timing of rehabilitation hearings in circumstances such as
those faced by Norris (and Severy and Wilson) do not support
its conclusions, are internally inconsistent, and ignore the
words of the statute. We therefore abandon them. We turn to
an examination of the provisions of ORS 163.105 (1985) with-
out regard to the court's decision in Norris, in an effort to dis-
cern how the legislature intended to deal with prisoners who
had been convicted of more than one aggravated murder and
had been sentenced to serve consecutive life sentences with
mandatory minimum terms of imprisonment.

For convenience, we repeat the relevant parts of
ORS 163.105 (1985) here:

"(1) When 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
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

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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 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 imprison-
ment with the possibility of parole or work release.
Otherwise, the board shall deny the relief sought in the
petition."

As we observe in Janowski / Fleming, subsection (1)
is a directive to the trial court; it requires the trial court to
order a defendant who has been sentenced to life imprison-
ment for aggravated murder to serve a minimum of 30 years
in prison without the possibility of parole. Janowski/
Fleming, 349 Or at 440. That is, 30 years is the "minimum
period of confinement" that the trial court must impose pur-
suant to subsection (1). Subsection (2) then describes the tim-
ing of rehabilitation hearings as being "any time after
20 years from the date of imposition of a minimum period of
confinement pursuant to subsection (1) of this section."
(Emphasis added.) Under the plain words of that subsection,
the trigger for the rehabilitation hearing is the "imposition"
of that minimum period of confinement. Only a court
"imposes" a sentence in a criminal case.

In the case of defendants Severy and Wilson, who
each were tried for and convicted of two aggravated murders
that were committed at the same time, the trial court
imposed the minimum period of confinement for both convic-
tions at the same time. And, when the trial court ordered
those minimum periods of confinement to be served consecu-
tively, the combined mandatory minimum sentence became
the "minimum period of confinement" imposed pursuant to

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subsection (1).7 Stated another way, the date that a trial
court orders a defendant who has been convicted of two or
more aggravated murders to serve consecutive 30-year man-
datory minimum sentences is the "date of imposition of a
minimum period of confinement pursuant to subsection (1)."
ORS 163.105(2) (1985). And, because the rehabilitation hear-
ing is to be held "after 20 years from the date of imposition of
a minimum period of confinement," it follows that, in cases in
which the prisoner simultaneously was ordered to serve more
than one consecutive 30-year mandatory minimum sentence
under ORS 163.105(1) (1985), the prisoner is entitled to a
rehabilitation hearing on the combined sentences-his entire
"minimum period of confinement"-after he has served
20 years in prison.

Subsection (3) then brings a different phrase into
play. Under that subsection, if the board unanimously finds
that a prisoner is "capable of rehabilitation," then the board
"shall convert the terms of the prisoner's confinement to life
imprisonment with the possibility of parole." (Emphasis
added.) In Norris, this court acknowledged that the word
"terms" in the phrase "terms of * * * confinement" could refer
to the conditions of the prisoner's confinement, but instead
held that the phrase meant the length of the period of con-
finement that the trial court had imposed for one aggravated
murder. 331 Or at 207. Apparently, the court came to that
conclusion solely because the trial court's imposition
of a 30-year mandatory minimum sentence under ORS
163.105(1) (1977) triggered the rehabilitation hearing
referred to elsewhere in the statute. See Norris, 331 Or at 207
(suggesting that conclusion). However, that analysis ignores
the fact that, in subsection (2), when the statute specifically
referred to the sentence that the trial court imposed for
aggravated murder, it used the phrase "period of confine-
ment." The fact that the legislature chose to use a different

7 The board's rules at the time that Severy and Wilson committed their crimes
were consistent with that interpretation. They required the board to treat consec-
utive sentences, including minimum sentences, as a unitary term of imprisonment.
OAR 255-35-022(5) (1982) provided:

"For purposes of establishing a parole release date, the Board shall consider
the summed ranges for consecutive sentences as a single unified range. Any
minimum sentences shall be considered as a single unified minimum."

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phrase-viz., "terms of * * * confinement"-in subsection (3)
suggests that it intended to convey a different meaning. In
this case, we think that the phrase "terms of * * * confine-
ment" in subsection (3) includes any conditions applicable to
a period of confinement, including a condition stating that
parole or any other form of release was prohibited for a man-
datory minimum period and a requirement that certain per-
iods of confinement be served consecutively. It does not refer
to the sentence that the trial court imposed for one of multi-
ple convictions for aggravated murder.

The foregoing analytical point is bolstered by the
fact that the issue to be decided at the rehabilitation hearing
is whether the prisoner has met his burden to prove that he is
likely to be rehabilitated within a reasonable period of time.
ORS 163.105(2) (1985). That determination pertains only to
personal characteristics of the prisoner; it does not focus
either on the offenses that the prisoner committed or on
which of multiple consecutive sentences he was serving when
the hearing occurred. If the board finds that a prisoner is
likely to be rehabilitated within a reasonable time, it defies
logic to conclude that the legislature intended the board to
require the offender to make that precise showing again
20 years later. We hold that, in requiring the board to convert
the "terms of the prisoner's confinement" to life with the pos-
sibility of parole, ORS 163.105(3) (1985) required the board to
convert the prohibition on eligibility for parole (for both con-
secutive sentences for aggravated murder) to the possibility
of parole.

So much for "terms of confinement." We turn now to
the separate issue of "period of confinement." In Severy's and
Wilson's cases, the trial court imposed consecutive sentences
of life in prison, each with a 30-year period to be served with-
out the possibility of parole. After Severy and Wilson each
had been incarcerated for 20 years, the board unanimously
found that each was capable of rehabilitation. The board then
was required to convert both of Severy's and Wilson's sen-
tences to life in prison with the possibility of parole. That
"conversion" necessarily eliminated both 30-year mandatory
minimum sentences, but it did not necessarily alter the con-
secutive nature of the prisoners' sentences that remain in
force. In sum, we conclude that this court erred in Norris in

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holding that a prisoner sentenced to consecutive life sen-
tences with 30-year minimums must wait until he or she has
served 20 years on the second life sentence before the board
may decide whether he is capable of rehabilitation.

As noted, when the board issued the orders regard-
ing both Severy and Wilson, it properly assumed that this
court's decision in Norris correctly stated the controlling law.
Accordingly, the board did not consider how its decision
would affect the second mandatory minimum that the trial
court had imposed on Severy and Wilson. More specifically,
the board did not have occasion to consider whether each
prisoner would still have to serve a reduced mandatory min-
imum sentence of 20 years for the second offense or whether
the effect of its finding that each prisoner is capable of reha-
bilitation meant that the matrix applied immediately.
Beyond that, the board did not have occasion to consider, if
the matrix applies immediately, how the second mandatory
minimum should be factored, if at all, into the matrix deter-
mination. Perhaps we could resolve some of those issues in
advance of the board's resolution of them. But we think that
the more prudent course is to remand these consolidated
cases to the board so that it may address those questions in
the first instance. The board's orders resolving those issues
may limit, clarify, or sharpen the issues for any further
review.

The decisions of the Court of Appeals are reversed.
The orders of the Board of Parole and Post-Prison Supervision
are reversed, and the cases are remanded to the Board of
Parole and Post-Prison Supervision for further proceedings.