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

• Decision Date: 03 June 2021
• Docket Number: A170529
• Citation: 312 Or.App. 32,492 P.3d 1283
• Court: Oregon Court of Appeals
• Parties: Bradford Scott STEWART, Petitioner, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.

312 Or.App. 32

492 P.3d 1283

Bradford Scott STEWART, Petitioner,

v.BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.

A170529

Court of Appeals of Oregon.

Argued and submitted May 3, 2021

June 3, 2021

Brett J. Allin, Deputy Public Defender, argued the cause for petitioner. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

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

Before Lagesen, Presiding Judge, and James, Judge, and Kamins, Judge.

LAGESEN, P. J.

Petitioner seeks judicial review of a final order of the Board of Parole and Post-Prison Supervision classifying him as a Level 3 sex offender. The board classified petitioner using the Static-99R risk assessment tool that the board adopted to implement its statutory obligation to "adopt by rule a sex offender risk assessment methodology for use in classifying sex offenders." ORS 163A.100 ; see OAR 255-085-0020 (adopting Static-99R "actuarial instrument" to classify sex offenders); see also Baker v. Board of Parole , 305 Or. App. 814, 816-18, 473 P.3d 83, rev. den. , 367 Or. 290, 476 P.3d 1253 (2020) (describing board's adoption and use of the Static-99R to classify sex offenders). In seven assignments of error, petitioner contends that the board made multiple mistakes in its use and scoring of the Static-99R. For the reasons that follow, we reject all but his sixth and seventh assignments of error, in which we conclude that the board's finding that it is more likely than not that petitioner had committed certain offenses for which the charges were dismissed is not supported by substantial evidence in the record as a whole.

Petitioner was convicted of misdemeanor indecent exposure in California in 2012 and required to register as a sex offender in that state. Because of that, when petitioner moved to Oregon in 2018, he was required to register as a sex offender, and the board was required to classify him using the methodology adopted under ORS 163A.100. ORS 163A.105(4)(a). To that end, the board sent petitioner a questionnaire, which petitioner completed. On that form, petitioner noted his offense of registration—the 2012 indecent exposure conviction—and also that he had been charged with indecent exposure in 2004. He explained that, also in 2004, he "was falsely charged *** and imprisoned for a sex offense (major case) in Sacramento, CA, [around] Nov[ember]-December 2004! But the case was dismissed because they caught the right person. It was actually Burglary/sex offense case. Again I wasn't involved in this crime just falsely accused and imprisoned!"

After receiving petitioner's information and collecting information on his criminal history, the board gave petitioner a score of 6 on the Static-99R, which, under the board's rules, meant that petitioner had to be classified as a Level 3, high-risk sex offender. In so doing, the board did not take into account petitioner's completion of sex-offender treatment in California, and also did not take into account petitioner's offense-free time since being released from incarceration on his misdemeanor conviction. The board did, however, score petitioner as having committed the offenses for which the charges had been dismissed, and for which petitioner claimed that another person had been caught. Petitioner requested review, contesting, among other things, the board's reliance on the charges that had been dismissed in Sacramento Case No. 04F10942, and on which petitioner claimed innocence. He also contended that the board should have taken into account the fact that he had successfully completed sex-offender treatment in California, and that the board erroneously scored an item relating to his past relationships.

The board rejected those contentions and, ultimately, increased petitioner's Static-99R score to a 7, which meant that he remained classified as a Level 3 sex offender. Addressing petitioner's contention that it should not have relied on the charges that were dismissed, the board determined that, for one scoring item, it was required to consider all charges. For two other scoring items, the board noted that it was permitted to rely on the dismissed charges if it determined that it was more likely than not that petitioner had committed the crimes charged. Based on the police reports and the fact that petitioner had been "formally charged," it concluded that "it is more likely than not that a crime was committed." Responding to petitioner's contention that it should have considered his sex-offender treatment, the board explained that "[t]his matter was not considered at this time as it is outside the scope of this review."

Petitioner thereafter petitioned for judicial review of the board's decision, as allowed by ORS 144.335(1). He raises seven assignments of error. We address them in turn. The upshot is that we ultimately conclude, as petitioner argues in his sixth and seventh assignments of error, that the board erred when it relied on the dismissed charges in scoring Items 8 and 9 on the Static-99R, because the record as whole does not contain substantial evidence to support the board's finding that petitioner more likely than not committed the crimes underlying the dismissed charges. We otherwise affirm.

In his first three assignments of error, which petitioner supports with a combined argument, petitioner contends that (1) the board erred in determining that he was a Level 3 sex offender; (2) the board erred when it did not consider his offense-free time post-release in scoring the Static-99R; and (3) the board erred when it did not take into account his completion of sex-offender treatment. As we understand his arguments, petitioner's first assignment of error is linked to, and largely dependent on, his second and third assignments of error, the gravamen being that, in petitioner's view, the board should take into account post-release conduct when scoring the Static-99R for an offender who, like petitioner, has moved to Oregon after having been free in the community for some period of time. The board responds that petitioner neither exhausted nor preserved his first two assignments of error, and notes that, to the extent we might be inclined to relax the exhaustion requirement, see Tuckenberry v. Board of Parole , 365 Or. 640, 655-56, 451 P.3d 227 (2019) (discussing circumstances allowing for relaxation of statutory exhaustion requirement), petitioner did not request plain-error review in his opening brief. The board also argues that petitioner is wrong on the merits. As for the third assignment of error, which the board acknowledges is exhausted and preserved, the board points out that the Static-99R scoring guide makes consideration of any sex-offender treatment discretionary with the board.

We agree with the board that petitioner neither exhausted nor preserved his first two assignments of error. Even if we were to conclude that the exhaustion requirement should be relaxed under Tuckenberry , such that only preservation-of-error principles were in play, neither of the first two assigned errors is "obvious and not reasonably in dispute" so as to qualify as plain error. See State v. Vanornum , 354 Or. 614, 629, 317 P.3d 889 (2013) ("For an error to be plain error, it must be an error of law, obvious and not reasonably in dispute, and apparent on the record without requiring the court to choose among competing inferences.").

As for the third assignment of error, we review for legal error the board's interpretation of the Static-99R Coding Rules. Baker , 305 Or. App. at 818-19, 473 P.3d 83. The Static-99R Coding Rules provide that treatment should not be considered as part of the scoring. Phenix et al , Static-99R Coding Rules , 8 (rev. ed. 2016), available at https://www.oregon.gov/boppps/Documents/Exhibits/ExhibitQ2.pdf (accessed May 26, 2021) (the Coding Rules); see OAR 255-085-0020(2). Specifically, they state, "Participation in treatment is not considered in scoring Static-99R or in interpreting the normative data for the scale." Coding Rules at 8. They provide further that treatment is something that evaluators "may" want to mention, although it is not relevant to scoring, stating, "We...