812 P.2d 423
CA A63709Oregon Court of Appeals.Argued and submitted January 30, 1991
Reversed and remanded for reconsideration May 22, 1991
Judicial Review from Board of Parole.
Lawrence J. Hall, Deputy Public Defender, Salem, argued the cause for petitioner. With him on the brief was Sally L. Avera, Public Defender, Salem.
John Reuling, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Before Richardson, Presiding Judge, and Newman and Deits, Judges.
PER CURIAM
Reversed and remanded for reconsideration.
Page 379
PER CURIAM
Petitioner seeks review of a Board of Parole order setting his parole release date. He argues that the Board considered the wrong matrix range in deciding not to overrule his minimum sentence. We reverse and remand.
At petitioner’s parole hearing, the Board established a matrix range of 211 to 284 months and, by a vote of 3 to 2, decided not to override a 300-month minimum sentence for petitioner’s murder conviction. The state concedes that the matrix range used by the Board was wrong and that the correct range should have been 198 to 268 months. It also acknowledges that the Board was required to consider the appropriate matrix range in determining whether a minimum sentence should be overridden. See Howard v. State Board of Parole, 105 Or. App. 288, 290, 804 P.2d 509 (1991).[1]
The state argues, nonetheless, that the use of the wrong matrix range was not error, because the Board is only required to “consider” the range as one factor in making its decision whether to override the minimum and that the slight difference between the correct range and the one that it used could not have been material in the Board’s decision. We hold that the Board must reconsider its decision because, as a matter of law, we cannot say that its decision was not affected by the use of the incorrect range.
Petitioner’s remaining assignments of error are without merit.
Reversed and remanded for reconsideration.
Page 380