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FILED: December 23, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON 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) En Banc On review from the Court of Appeals.* Argued and submitted January 5, 2010. 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/Administrative 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).
GILLETTE, J.
These two parole eligibility cases have been consolidated 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 rehabilitation within a reasonable period of time. In Janowski/Fleming v. Board of Parole, 349 Or ___, ___, ___ P3d ___ (2010) (decided this date) (slip op at 15), we hold that the board has the authority to override 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 rehabilitation 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 __ (slip op at 24).  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 minimum 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 possibility 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 hearing that could result in the conversion of the second sentence. 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 procedural 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 consecutive 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 recalculating 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.
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' imprisonment, set a parole release date in December 2044, and sustained Wilson's consecutive 30-year mandatory minimum sentences.  As it had in Severy's case, the board later withdrew that part of its order setting a release date as inconsistent 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 aggravated 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 hearings, 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 second consecutive 30-year mandatory minimum sentence, the board informed both Severy and Wilson that they could petition the board again in 20 years for a change in the
terms of confinement for their second sentences.(5)  Both Severy and Wilson sought administrative review of those orders, arguing, among other things, that ORS 163.105(3) (1985) directed the board to override the judicially imposed mandatory minimum sentence for both aggravated murder sentences upon the board's finding that the prisoner was capable of rehabilitation 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

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