Stewart v. Bd. of Parole & Post-Prison Supervision, 378

• Decision Date: 03 June 2021
• Docket Number: A170529,No. 378,378
• Parties: BRADFORD SCOTT STEWART, Petitioner, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.
• Court: Oregon Court of Appeals

312 Or App 32

BRADFORD SCOTT STEWART, Petitioner,
v.
BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.

No. 378
A170529

COURT OF APPEALS OF THE STATE OF OREGON

Argued and submitted May 3, 2021
June 3, 2021

Board of Parole and Post-Prison Supervision

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.

Reversed and remanded.

Page 33

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 P3d 83, rev den, 367 Or 290 (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

Page 34

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...