Baker v. Bd. of Parole & Post-Prison Supervision, A168478

• Court: Court of Appeals of Oregon
• Writing for the Court: MOONEY, J.
• Citation: 305 Or.App. 814,473 P.3d 83
• Parties: Lavont E. BAKER, Petitioner, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.
• Decision Date: 12 August 2020
• Docket Number: A168478

305 Or.App. 814
473 P.3d 83

Lavont E. BAKER, Petitioner,
v.
BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.

A168478

Court of Appeals of Oregon.

Argued and submitted October 1, 2019
August 12, 2020

Nicole S. Thompson argued the cause and filed the briefs for petitioner.

E. Nani Apo, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Mooney, Judge.^*

MOONEY, J.

473 P.3d 85

305 Or.App. 815

Upon his release from prison, petitioner was required to be evaluated and classified as a Level 1, Level 2, or Level 3 sex offender. His classification would, in turn, determine the level of reporting that would be required of him as a sex offender. Pursuant to its regulations, the Board of Parole and Post-Prison Supervision (board) used the "Static-99R assessment" tool to evaluate petitioner and classify him as a Level 3 (High Risk) sex offender. Petitioner seeks judicial review of the board's final order under ORS 144.335(1), assigning error to its calculation of his Level 3 classification. He advances three arguments as to why the board incorrectly determined his final score. For the reasons explained below, we reject each of them and affirm the board's order.

Because petitioner exhausted his administrative remedies, the board's final order is reviewable on the bases provided in ORS 183.482(8). ORS 144.335(3). Under 183.482 (8)(a), we review that order to determine whether the board "erroneously interpreted a provision of law," here, its own rule—the Static-99R assessment tool—"and * * * a correct interpretation compels a particular action[.]" See Gadalean v. SAIF , 364 Or. 707, 714, 439 P.3d 965 (2019) (explaining that, under ORS 183.482(8)(a), a question of law is reviewed for legal error). When determining whether the board correctly interpreted its own rule, we defer to the board's interpretation, so long as its interpretation is not inconsistent with the "wording of the rule itself, or with the rule's context, or with any other source of law[.]" Don't Waste Oregon Com. v. Energy Facility Siting , 320 Or. 132, 142, 881 P.2d 119 (1994). Under ORS 183.482(8)(b), we "shall remand the order to the agency" if we find that its exercise of discretion is

"(A) Outside the range of discretion delegated to the agency by law;

"(B) Inconsistent with an agency rule, an officially stated agency position, or a prior agency practice, if the inconsistency is not explained by the agency; or

"(C) Otherwise in violation of a constitutional or statutory provision."

305 Or.App. 816

Finally, under ORS 183.482(8)(c), we will set aside the final order if it is unsupported by substantial evidence in the record.

The facts of this case are largely procedural and undisputed. ORS 163A.100 required the board to classify petitioner as a Level 1, 2, or 3 sex offender upon his 2017 release from prison. As part of that evaluative process, petitioner filled out and returned a questionnaire used by the board to evaluate and classify sex offenders. The board reviews both the questionnaire and evidence of the offender's criminal and personal history to tabulate a final score on the Static-99R assessment, which corresponds with one of Oregon's three sex offender notification levels under ORS 163A.100. The board ultimately scored petitioner as a 6, which was the minimum score required to classify him as a "Level 3 (High Risk)" sex offender. ORS 163A.100(3). After exhausting his administrative remedies challenging that classification, he now seeks judicial review of the board's final order, assigning error to its calculation of his score.

Because petitioner challenges the board's calculations under different scoring items on the Static-99R assessment, we discuss additional facts below as we address each of his arguments. We begin, however, by contextualizing the board's classification of petitioner through an overview of the relevant statutory and regulatory framework. ORS 163A.100 requires the board to "adopt by rule a sex offender risk assessment methodology for use in classifying sex offenders." The "[a]pplication of the risk assessment methodology to a sex offender must result in placing the sex offender in one of the following levels:

473 P.3d 86

"(1) A level one sex offender who presents the lowest risk of reoffending and requires a limited range of notification.

"(2) A level two sex offender who presents a moderate risk of reoffending and requires a moderate range of notification.

"(3) A level three sex offender who presents the highest risk of reoffending and requires the widest range of notification."

305 Or.App. 817

ORS 163A.100. The board must classify a person convicted of a sex crime upon discharge, parole, or release from a state correctional facility. ORS 163A.110(2)(a)(A), (B). The level of classification determines the intensity of the sex offender's reporting obligation. ORS 163A.100. The purpose of the sex offender reporting obligation is to "assist law enforcement agencies in preventing future sex offenses." ORS 163A.045(1).

To carry out its statutory mandate of classifying sex offenders upon release from custody, the board adopted OAR 255-085-0020, which states, in part:

"(1) For classification and community notification for adult male registrants, the classifying agency shall use the Static-99R actuarial instrument on the Board's website at http://www.oregon.gov/BOPPPS along with attending rules and research found on http://www.static99.org/, to conduct a sex offender risk assessment. Classifying agencies may score registrants using information from previous Static-99 or Static-99R assessments. Classifying agencies shall score and place each registrant into one of the following levels:

"(a) Notification Level 1: Low risk;

"(b) Notification Level 2: Moderate risk; or

"(c) Notification Level 3: High risk."

The Static-99R risk assessment's comprehensive list of coding rules require the offender's evaluator—the board—to review his past behaviors and tabulate scores based on whether those past behaviors correlate with a likelihood of reoffending. Phenix et al , Static-99R Coding Rules (2016), available at http://static99.org/pdfdocs/Coding_manual_2016_InPRESS.pdf (accessed Aug 4, 2020) (Coding Rules). The evaluator reviews a list of 10 items that have been shown to be associated with sexual recidivism and then scores the offender based on whether he meets the item's criteria. The items consist of (1) the person's age at release from the index sexual offense;¹ (2) whether the person has ever lived with an intimate partner for two continuous years; (3) prior convictions related to nonsexual violence;

305 Or.App. 818

(4) prior sexual violence convictions; (5) prior sex offenses; (6) prior sentencing dates; (7) prior convictions for noncontact sex offenses; (8) any unrelated victims; (9) any stranger victims; and (10) any male victims.

Each item contains different scoring criteria and available scores. For example, if an offender "has never had an intimate adult relationship of two years’ duration," the evaluator would score the person a "1" on that item. Coding Rules at 49. It is possible for an offender to score up to a 3 on certain items, while other items allow for reductions in the score by 1 point (i.e. , an item score of -1). If an offender's total score is equal to or greater than 6, as was petitioner's, the board classifies the offender as "High risk." Id. at 12.

Petitioner argues that the board made three separate errors in its application of the Static-99R assessment to him. First, he argues that the board committed legal error when it classified his 1986 conviction for first-degree kidnapping as both a "prior non-sexual violence conviction" (item 4) and as a prior sex offense (item 5). Second, he argues that the board abused its discretion when it did not attempt to contact his former partner to confirm his assertion that he lived with her for two years, and, because it did not, the board incorrectly gave him a score of 1 (item 2). Third, he argues that the board's scores under items 5 and 6 are not supported by substantial evidence "because there was no evidence in the record of any juvenile cases," which were relevant to its scoring on those items. For reasons explained below, we reject each of petitioner's arguments.

473 P.3d 87

First, petitioner argues that the board legally erred in double-counting his 1986 conviction for first-degree kidnapping as both a "Prior Non-Sexual Violence Conviction" (item 4) and as a "Prior Sex Offense" (item 5). That is so, he argues, because the state charged him with Kidnapping I under ORS 163.235(1)(c), which required proof of intent "to cause physical injury to the victim," rather than under ORS 163.235(1)(e), which required proof of intent to further the commission of rape or sodomy. As explained below, we conclude that the board did not commit legal error; further, to the...