A judge has ordered that a Baker City man be released from Powder River Correctional Facility “as soon as practicable” because Gov. Tina Kotek’s revocation of the commutation of his prison sentence in 2021 resulted in a longer term of punishment, including prison time and probation, than his original sentence from a 2019 conviction in Baker County.

Michael Scott Tugman, 36, had sought his release through a habeas corpus petition. He was scheduled to be released in one week, on Oct. 8.

Judge Cheryl Pellegrini made that decision about 10:30 a.m. on Tuesday, Oct. 1, after a 90-minute hearing conducted remotely.

“I do find that Mr. Tugman’s continued incarceration is unlawful,” Pellegrini said.

In addition to ordering that Tugman be released, the judge ruled that he is not subject to probation after his release.

Tugman participated from a room at the minimum-security prison in Baker City. He was represented by Malori Maloney, an attorney with the Oregon Justice Resource Center in Portland.

Natalie Fisher, an assistant attorney general, represented the state.

Maloney argued in her habeas petition that Kotek violated Tugman’s constitutional rights because her revocation of his commutation, which resulted in Tugman’s arrest in April 2024 and his return to prison, led to a total sentence, including probation, that exceeded the original 40-month term.

Judge Pellegrini agreed with Maloney that Tugman’s sentence ended on June 20, 2024.

Maloney said she could not comment on Tuesday morning.

Original conviction and sentence

Tugman pleaded guilty in September 2019 in Baker County Circuit Court to failing to report as a sex offender. He was sentenced to 16 months in prison and 24 months probation, a total of 40 months.

On March 29, 2021, then-Gov. Kate Brown commuted the rest of Tugman’s prison sentence, which was about six months (177 days), to probation. Tugman was released from Powder River Correctional Facility on April 1, 2021.

The commutation order Brown signed on March 29, 2021, one of several she signed during the pandemic, included 13 inmates and didn’t mention Tugman by name, according to a habeas petition that Maloney filed in Baker County Circuit Court on Sept. 17, 2024.

Tugman remained out of prison for almost three years after his release in April 2021, though he remained on probation under the terms of the commutation.

On Jan. 19, 2024, Tugman was arrested in Baker City for failing to report as a sex offender. According to Maloney’s memo in support of Tugman’s habeas corpus petition, Tugman failed to report within 10 days of changing his address, as state law requires for registered sex offenders.

He pleaded guilty to the charge on Feb. 5, 2024, and was sentenced to 30 days in jail and 36 months probation.

Tugman was released from the Baker County Jail in late February.

According to Maloney’s memo, after Tugman was released from jail, his probation officer, Rebecca Monahan, told Tugman that Kotek might revoke his commutation.

Monahan gave Maloney a copy of an email she received on April 5, 2024, from Dylan Arthur, executive director of the Oregon Board of Parole & Post-Prison Supervision, in which Arthur wrote that Kotek had revoked Tugman’s commutation effective March 12. Arthur wrote that the parole board would issue an arrest warrant for Tugman.

According to Maloney’s memo, on April 15 Tugman went to the Baker County Parole and Probation office for a scheduled check-in with Monahan.

Monahan let Tugman meet with his cousin and with his partner, who is pregnant with Tugman’s child.

Monahan then took Tugman to the Baker County Jail. He was in that jail for about 10 days, then was transferred to the Multnomah County Jail and then to the Coffee Creek Correctional Facility in Hillsboro. Tugman was later transferred to Powder River in Baker City, where he remains as he serves the 177 days that were left on his prison term and were changed to probation under Brown’s commutation.

Tugman’s petitions for release

Maloney initially filed a petition for a writ of habeas corpus — seeking Tugman’s immediate release from prison — with the Oregon Supreme Court on Aug. 16.

Benjamin Gutman, solicitor general with the Oregon Department of Justice, filed a response with the Supreme Court on Sept. 4 in which he argued that Kotek’s decision to revoke Tugman’s commutation did not violate his constitutional rights, in part because he had committed another crime — the failure to register charge that he pleaded guilty to in February — and so had violated terms of his commutation.

On Sept. 13 the state Supreme Court declined to consider Tugman’s case.

The denial was “without prejudice,” however, meaning Tugman could file a new habeas corpus petition in Baker County Circuit Court.

Maloney filed that petition on Sept. 17.

Natalie Fisher, an assistant attorney general, filed a memo on Sept. 24, and the hearing before Judge Pellegrini was scheduled for 9 a.m. on Oct. 1.

Tuesday’s hearing

Maloney told the judge that Tugman’s girlfriend is scheduled to give birth to their child on Oct. 6.

Maloney repeated the arguments she made in the habeas petition.

For one, Maloney said Tugman was not given a copy of Brown’s 2021 commutation of his sentence, nor was he told that the agreement could be revoked.

The lack of notice deprived Tugman of due process, Maloney argued.

She told the judge that of the more than 1,000 inmates whose sentences Gov. Brown commuted to reduce prison populations during the pandemic, and potentially reduce the spread of the virus, about “two-thirds” were given an agreement which they signed.

But Tugman was not among those inmates, Maloney said.

Maloney told the judge that Tugman did not receive a copy of the revocation order than Kotek signed earlier this year. That also violated Tugman’s due process rights, Maloney argued.

Had he been notified of the revocation before he was arrested and returned to prison in April, Tugman could have argued that the revocation was illegal if it resulted in a longer total sentence, including prison time and probation, Maloney said.

Maloney argued further that other issues aside, Tugman has been entitled to be released from prison since June 20, 2024, the date his original 40-month sentence ended.

Fisher acknowledged that there have been “procedural issues” in some of Kotek’s revocations of commutations her predecessor signed during the pandemic.

But Fisher argued that a habeas petition is not the appropriate remedy for Tugman’s claims. Rather, Fisher said, Tugman should pursue relief through the state parole board.

Fisher noted in her response to Maloney’s Sept. 17 petition that Tugman, even if he were released on Oct. 8, would not serve a single day in prison more than his original 16-month sentence. The issue, Fisher wrote, is whether his probation period would exceed the total original sentence of 40 months.

Judge’s decision

Pellegrini, a former Marion County Circuit Court judge who retired in 2021 but was named as a senior judge by the state supreme court, meaning she can be assigned to cases in circuit courts around the state, said after hearing from Maloney and Fisher that she intended to render her ruling Tuesday rather than write an opinion because that “takes too much time.”

Pellegrini said she agreed with Maloney that Tugman’s original 40-month sentence expired June 20, 2024. His continued incarceration since then violated the separation of powers clause in the Oregon Constitution. Kotek’s revocation of Tugman’s commutation, a decision by the executive branch, resulted in a longer sentence than the judicial branch approved after Tugman’s conviction.

Pellegrini also concluded that Tugman was entitled, under the 14th Amendment to the U.S. Constitution, which guarantees equal protection under the law, to a chance “to be heard” before Kotek revoked his commutation.

Fisher’s argument that even if Tugman had been given that chance, the outcome would have been the same, with his return to prison, is “speculative,” Pellegrini said.