Sohappy v. Bd. of Parole & Post-Prison Supervision

• Citation: 329 Or.App. 28
• Docket Number: A174855
• Decision Date: 08 November 2023
• Parties: DOMINIQUE JERMAINE SOHAPPY, Petitioner, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.
• Court: Court of Appeals of Oregon

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329 Or.App. 28

DOMINIQUE JERMAINE SOHAPPY, Petitioner,
v.
BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.

No. A174855

Court of Appeals of Oregon

November 8, 2023

Submitted November 21, 2022

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 Jeff J. Payne, Assistant Attorney General, fled the brief for respondent.

Before Aoyagi, Presiding Judge, and Lagesen, Chief Judge, and Jacquot, Judge.

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[329 Or.App. 29]

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[329 Or.App. 30] AOYAGI, P. J.

Petitioner seeks judicial review of a 2020 order of the Board of Parole and Post-Prison Supervision that set petitioner's sex offender notification level (SONL) at Level 2 (Moderate). Under ORS 163A.100, the board must "adopt by rule a sex offender risk assessment methodology for use in classifying sex offenders," and application of that rule "must result in placing the sex offender in one of three notification levels based on their risk of reoffending-with Level 3 offenders presenting the highest risk, Level 2 offenders presenting a moderate risk, and Level 1 offenders presenting the lowest risk. In response to that directive, the board adopted OAR 255-085-0020, and it applied the version of that rule in effect on April 29, 2020, to petitioner. OAR 255-085-0020 (Apr 29, 2020) provides that the board "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" and place each registrant into one of the three notification levels.

Petitioner contends that the board misinterpreted OAR 255-085-0020(1) (Apr 29, 2020) when it used the Static-99R actuarial instrument without the attending rules and research on the Static-99R website to determine his risk level, specifically the attending rules and research related to sex-offense-free time in the community. Petitioner argues that the board's failure to account for his 12 years of sex-offense-free time in the community resulted in SONL misclas-sification. The board responds that it is discretionary under the Static-99R methodology whether to consider sex-offense-free time. We agree with petitioner that the board's interpretation is implausible, and that the only plausible interpretation of the rule required the board to use the attending rules and research on the Static-99R website regarding sex-offense-free time in the community in setting petitioner's risk level. We therefore reverse and remand.

All references to OAR 255-085-0020 in this opinion are to the version that went into effect on April 29, 2020, which is the version that the board applied to petitioner. The

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[329 Or.App. 31] rule has since been amended twice, but those amendments are not at issue in this review proceeding.^[1]

I. FACTS

When petitioner was 18 years old, he engaged in sexual misconduct toward fellow students at the Oregon School for the Deaf, which led to his 2008 conviction for offenses requiring him to register as a sex offender. Petitioner was sentenced to 60 months' probation, which he successfully completed, and never served any prison time.

In April 2020, petitioner petitioned the board for relief from registering as a sex offender. See ORS 163A. 125(1) (allowing people classified in Level 1 to request relief from the sex offender registration requirement). Because petitioner had never been classified under the current SONL system, the board used the Static-99R actuarial instrument to conduct a risk assessment and set his initial SONL under OAR 255-085-0020. See Or Laws 2013, ch 708, § 7, compiled as a note after ORS 163A.110 (addressing SONL classification of "existing registrants," i.e., people for whom the event that triggered their obligation to make an initial report as a sex offender, such as release into the community, occurred before January 1, 2014); Baker v. Board of Parole, 305 Or.App. 814, 817, 473 P.3d 83, rev den, 367 Or. 290 (2020) (explaining that, under the current SONL system, a person convicted of a sex crime must be classified by the board to determine the intensity of the person's reporting obligation).

The board determined that petitioner's Static-99R score was "5" and, based solely on that score, issued an order in June 2020 classifying him as Level 2 (Moderate). Petitioner requested review, asserting, as relevant here, that the board's approach failed to take into account the 12 years that he had been living sex-offense-free in the community. As explained more later, the attending rules and research

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[329 Or.App. 32] on the Static-99R website address sex-offense-free time in the community as relevant to a sex offender's risk of reoffending. In early September 2020, the board rejected petitioner's objections and issued a "Verification of Static-99R Score and Final Order for Sex Offender Notification Level Classification." The board affirmed its decision to set petitioner's SONL at Level 2 (Moderate), based solely on his "5" score on the Static-99R. As described in the notice sent to petitioner, that decision was "final" as to petitioner's initial SONL classification and was "not subject to administrative review under OAR 255-080" but was subject to judicial review under ORS 144.335. Petitioner filed a timely petition for judicial review of the board's SONL order.

Because petitioner had petitioned for relief from registration, the board also issued a second final order, denying relief from registration based on his Level 2 classification. See ORS 163A.125(1)(a) (only people classified in Level 1 are eligible to request relief from registration). On administrative review of that order, petitioner continued to challenge the board's approach of setting his SONL without taking into account his 12 years of sex-offense-free time in the community. The board stated in its administrative review order, "For consideration of offense-free time in the community, the Board shall consider it when the Board conducts a reclassification hearing." Petitioner filed an amended petition for judicial review to add the board's order denying relief from registration.

Petitioner seeks review of both orders, contending that the risk assessment methodology adopted by rule in OAR 255-085-0020-i.e., the Static-99R actuarial instrument and the attending rules and research on the Static-99R website-required the board to consider sex-offense-free time in the community in setting his SONL. Had the board done so, petitioner asserts, he would have been classified in Level 1, which would have both reduced the intensity of his reporting obligation and required the board to proceed to considering whether to relieve him from the registration requirement. A person classified in Level 1 and otherwise eligible may be relieved from the registration requirement if the board "determines, by clear and convincing evidence,"

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[329 Or.App. 33] that the person "[i]s statistically unlikely to reoffend" and "[d]oes not pose a threat to the safety of the public." ORS 163A.125(4)(a).

II. PROCEDURAL ISSUES

As a preliminary matter, the board argues that petitioner waived his objection, failed to exhaust his administrative remedies, and failed to preserve the issue raised on judicial review. We disagree and conclude that the issue is properly before us.

OAR 255-085-0040(1) provides that, with respect to SONL classification orders, "[w]ritten objections are limited to presenting factual evidence regarding the Static-99R score and must be plain, concise, and directly related to specific items on the Static-99R that the registrant claims were not scored correctly." Consistent with that rule, the board's initial order setting petitioner's SONL was accompanied by a Notice of Rights that advised petitioner that he had "the right to present written factual evidence to show that [his] Static-99R score is incorrect, as explained on the Written Objections form and in OAR 255-085-0040," and a Written Objections form that stated that objections had to be "directly related to specific items on the Static-99R." The Written Objections form listed the 10 factual items used to calculate the Static-99R score and required petitioner to check off the items that he was claiming "were scored incorrectly" and then provide a written explanation for each item as to why he believed it was scored incorrectly.^[2]

The rule, the notice provided to petitioner, and the objection form provided to petitioner all indicate that the only objections to the SONL order that could be raised to the board were objections to the scoring of individual Static-99R items. Consequently, it is not at all clear that the board provided a process for petitioner to challenge the board's interpretation of OAR 255-085-0020(1) as reflected in its order setting his SONL at Level 2. See Golden Rule Farms v. Water Resources Dept, 321 Or.App. 43, 48, 515 P.3d 908 (2022) (generally, when "an agency provides a process for raising issues

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[329 Or.App. 34] to it, the doctrine [of administrative exhaustion] requires a party to present the issue to the agency through that process before a court will consider it"); cf. Peeples v. Lampert, 345 Or. 209, 219, 191 P.3d 637 (2008) ("when a party has no practical ability to raise an issue," "the preservation requirement gives way entirely").

Nevertheless, petitioner did raise the issue to the board. On the Written Objections form, petitioner did not check any of the boxes listed, instead providing a two-page letter. Petitioner did "not claim that he was scored incorrectly on any of the Static-99R items" but, as relevant here, included a paragraph arguing that the board should have taken into account...