FILED: March 10, 2004

IN THE COURT OF APPEALS OF THE STATE OF OREGON

DOUGLAS ALLEN ASHCROFT,

Petitioner,

v.

PSYCHIATRIC SECURITY REVIEW BOARD,

Respondent.

00-1711; A118137

Judicial Review from Psychiatric Security Review Board.

Argued and submitted December 15, 2003.

Harris S. Matarazzo argued the cause and filed the brief for petitioner.

Katherine H. Waldo, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before Haselton, Presiding Judge, and Linder and Ortega, Judges.

LINDER, J.

Reversed and remanded for reconsideration.

LINDER, J.

Petitioner seeks review of an order of the Psychiatric Security Review Board (PSRB) denying his request for discharge or conditional release. Petitioner asserts that: (1) the record is insufficient to support PSRB's finding that he suffers from alcohol dependence; and (2) such a diagnosis is not a mental disease or defect within the meaning of ORS 161.295(2). We conclude that the record contains substantial evidence that petitioner suffers from alcohol dependence. See ORS 183.482(8)(c). But we adhere to our recent holding in Beiswenger v. PSRB, 192 Or App 38, 84 P3d 180 (2004), that alcohol dependence is not a mental disease or defect within the meaning of ORS 161.295(2). PSRB erred in so concluding.

As in Laing v. PSRB, __ Or App __, __ P3d __ (Mar 10, 2004), the state asserts alternatively that petitioner should be judicially estopped from arguing that alcohol dependence is not a mental disease or defect because he took the converse position in entering the plea of guilty except for insanity in the criminal proceeding that resulted in his commitment to PSRB's jurisdiction. In Laing, we declined to decide whether the judicial estoppel doctrine should apply in such cases because the record there did not adequately establish that the petitioner in fact took the position in his criminal prosecution that his alcohol dependence was a mental disease or defect. Id. at __ (slip op at 3-4). In this case, the record is even more sparse. No mental health or other form of medical assessment of petitioner--if any existed--was provided to the trial court. Instead, the record discloses only that the prosecutor and petitioner presented the trial court with their advance agreement that petitioner should be permitted to enter a plea of guilty except for insanity, and the trial court accepted the plea. The record does not reveal the factual basis for their agreement, for the plea itself, or for the court's acceptance of it. Because it does not, we decline to consider the state's judicial estoppel argument further.

Reversed and remanded for reconsideration.


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