Lewis-Taylor v. Bd. of Parole & Post-Prison Supervision

• Citation: 329 Or.App. 53
• Docket Number: A176795
• Decision Date: 08 November 2023
• Parties: JERMAINE KEITH LEWIS-TAYLOR, Petitioner, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.
• Court: Court of Appeals of Oregon

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329 Or.App. 53

JERMAINE KEITH LEWIS-TAYLOR, Petitioner,
v.
BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.

No. A176795

Court of Appeals of Oregon

November 8, 2023

Submitted January 24, 2023

Board of Parole and Post-Prison Supervision

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Stephanie J. Hortsch, Deputy Public Defender, Offce of Public Defense Services, fled the briefs for petitioner.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Erica L. Herb, Assistant Attorney General, fled the brief for respondent.

Before Aoyagi, Presiding Judge, and Joyce, Judge, and Hellman, Judge.

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[329 Or.App. 54] AOYAGI, P. J.

Petitioner seeks judicial review of an August 2021 order of the Board of Parole and Post-Prison Supervision that, pursuant to ORS 163A.100 and OAR 255-085-0020(2) (Nov 25, 2020), set his sex offender notification level (SONL) at Level 3 (High). Like the petitioners in two other cases decided today, Sohappy v. Board of Parole, 329 Or.App. 28, __ P.3d __ (2023), and Watson v. Board of Parole, 329 Or.App. 13, __ P.3d __ (2023), petitioner contends that the board violated its own rule when it failed to account for sex-offense-free time in the community in setting his SONL. In both Sohappy and Watson, we reversed SONL orders based on the board's failure to comply with its own rule in that regard. Sohappy, 329 Or.App. at 30; Watson, 329 Or.App. at 14. This case is in a different procedural posture, however, which leads us to a different result. For the following reasons, we affirm.

The petitioner in Sohappy raised the issue of sex-offense-free time to the board, thus exhausting any administrative remedy. 329 Or.App. at 33-35. The petitioner in Watson did not raise the issue to the board, but, relying on Tuckenberry v. Board of Parole, 365 Or. 640, 642, 451 P.3d 227 (2019), we concluded that relaxing or setting aside the exhaustion requirement was appropriate in that circumstance. Watson, 329 Or.App. at 19-21. On the merits, assuming without deciding that we were limited to plain-error review, we held that the error qualified as plain in light of Sohappy and exercised our discretion to correct it. Id. at 26.

Here, petitioner did not raise the issue to the board, and he asks us to relax or set aside the administrative-exhaustion requirement. The board responds that, even if we were to do so, petitioner would be limited to plain-error review under Stewart and has not established plain error. See Stewart v. Board of Parole, 312 Or.App. 32, 35, 492 P.3d 1283 (2021) ("Even if we...