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

• Decision Date: 24 October 2019
• Docket Number: SC S066213
• Citation: 451 P.3d 227,365 Or. 640
• Parties: Brian Lee TUCKENBERRY, Petitioner on Review, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent on Review.
• Court: Oregon Supreme Court

365 Or. 640

451 P.3d 227

Brian Lee TUCKENBERRY, Petitioner on Review,

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

SC S066213

Supreme Court of Oregon, En Banc.

Argued and submitted March 4, 2019, at Lewis & Clark Law School, Portland, Oregon.

October 24, 2019

Marc D. Brown, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause for petitioner on review. Stephanie J. Hortsch and Marc D. Brown, Deputy Public Defenders, filed the briefs for petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender.

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

NAKAMOTO, J.

This is a companion case to Penn v. Board of Parole , 365 Or. 607, ––– P.3d –––– (2019), also decided today. Like the petitioner in Penn , petitioner seeks relief from a special condition of supervision, imposed on him by an order of the Board of Parole and Post-Prison Supervision, that requires petitioner to obtain permission from his parole officer before entering into any "intimate" relationship or encounter. But, unlike the petitioner in Penn , petitioner was unrepresented by counsel and did not raise the issues and arguments in his administrative review request to the board that he now raises before this court. The board contends that, as a result, petitioner failed to exhaust administrative review as required by ORS 144.335(1)(b) and that his appeal, therefore, cannot be considered on its merits. We conclude, however, that (1) petitioner objected to the special condition and complied with the statutory exhaustion requirement, and (2) the proceedings before the board were not of the sort that, under the general prudential exhaustion principles that ORS 144.335(1)(b) incorporates, would require petitioner to have raised the specific legal arguments that he now asserts, on pain of being barred from judicial review of the board's order. We can and do consider petitioner's objections to the condition of post-prison supervision regulating his "intimate" relationships and encounters, and conclude, for reasons set out in Penn , that the condition was not lawfully imposed in accordance with the statute governing the board's authority.

Based on an incident in which he entered his ex-girlfriend's residence through a window and raped her, petitioner was convicted of first-degree sexual abuse, ORS 163.427, and first-degree burglary, ORS 164.225. He was sentenced to 75 months in prison and 45 months of post-prison supervision. Before the incident leading to those convictions, petitioner and the victim had had a two-year relationship marked by other instances of physical and sexual abuse.

Shortly before his prison term ended, the board issued an order listing the conditions that would apply to petitioner during his term of post-prison supervision. One of several special conditions included in the order, which was identified as Special Condition 10, stated:

"Other: Special conditions may be imposed that are not listed above when the Board of Parole and Post-Prison Supervision determines that such conditions are necessary. Submit to assessment and evaluation to develop a case plan for supervision and/or treatment. *** SEX OFFENDER PACKAGE A: (a) *** (n) ***** Do not enter into or participate in any intimate relationship or intimate encounters with any person (male or female) without the prior written permission of the P[arole] O[fficer] ."

(Emphasis supplied.)

Petitioner filed a request for administrative review of the order on a form set out in the board's rules. The form provided a checklist of possible bases for objecting to an action of the board, with room for further explanation. The choices on the form included that (1) a finding by the board was not supported by substantial evidence; (2) pertinent information had not been available or had not been considered by the board; (3) the board's action was inconsistent with a rule or policy; and (4) the board's action violated a statute or constitutional provision.

On his form, petitioner indicated that there was no substantial evidence to support "a finding of[ ] Sex Offender Package A" and added, by way of explanation: "No children involved, no previous convictions, no drugs/alcohol use, frequent check in with *** my p[arole] o[fficer]." Petitioner also indicated that the board had failed to consider pertinent information, and he specified that he had a learning disability and limited education and that he did not know what he was signing when he signed his plea deal.

Petitioner filed the form as an attachment to an email, the text of which the board treated as an additional part of petitioner's administrative review request. In that email, petitioner stated:

"I would like for my restrictions to be removed due to the fact that I'm trying to do everything possible to succeed in society. These restrictions on me are going to stop me from being successful in life. *** I would like to be in my daughter's life. I miss her dearly. She is in Mississippi. I've changed these past 6 years since I've been incarcerated. If the parole board was ever to lift restrictions you would never have to doubt me. I want to do good. I want to be a better father. I would like a fair chance to make it in life."

The board denied petitioner's request for relief. After noting that petitioner had asked the board to remove "the special conditions of supervision listed under Special Condition (SC) # 10[,] commonly known as sex offender package A," the board responded that the board was required to impose that package of conditions on persons convicted of sex crimes, including those convicted of the crime of first-degree sexual abuse. The board then noted that some of the conditions "listed in sex offender package A" were not to be read as absolute prohibitions, but instead required prior written permission from petitioner's supervising officer. The board stated that it had determined that petitioner's remaining allegations were "not supported by the factual record," were "not sufficiently developed or explained," or were "without merit in light of the record and the board's findings of fact and conclusions of law." The board ended by advising petitioner, "You have exhausted your administrative remedies" and "may petition the Court of Appeals for judicial review of this order."

Petitioner filed a timely petition for judicial review by the Court of Appeals. In his opening brief, petitioner assigned error to the board's imposition of "the last provision in Special Condition No. 10," i.e ., the prohibition on "entering into or participating in any intimate relationship or intimate encounters with any person without the prior written permission of his supervising officer." Petitioner asserted that that condition (1) was not one that the board was required to impose on any person convicted of a sex crime and that the board had acted outside the range of discretion delegated to it by ORS 144.102 in imposing it; (2) was not supported by substantial evidence; and (3) was unconstitutionally vague and overbroad.

The board initially responded by moving to dismiss the petition for judicial review "for lack of jurisdiction" on the ground that petitioner had failed to exhaust his administrative remedies as required by ORS 144.335(1)(b) (a person "may seek judicial review of a final order of the board" if the person " has exhausted administrative review as provided by board rule"). In that motion, the board took the position that no part of petitioner's administrative review request, including the email to which it had been attached, identified the particular condition that was the focus of petitioner's petition for judicial review. Neither, in the board's view, did the administrative review request raise the specific objections that petitioner was raising on judicial review. The Appellate Commissioner denied the motion, explaining that, "giving petitioner the benefit of the doubt," petitioner's administrative review request had sufficiently raised the issues that he appeared to be raising in his petition for judicial review.

Later, in its response brief, the board repeated and expanded on its request that the petition for judicial review be dismissed for failure to exhaust administrative remedies, but it also responded to petitioner's arguments on the merits. The Court of Appeals implicitly rejected the board's exhaustion argument, but accepted its merits arguments, when it affirmed the board's order without opinion. Tuckenberry v. Board of Parole , 291 Or. App. 843, 419 P.3d 818 (2018).

Petitioner now seeks review of that decision by this court. He argues that the special condition, which purports to regulate his intimate relationships and encounters, (1) falls outside of the range of discretion delegated to the board with respect to conditions of post-prison supervision and (2) is unconstitutionally vague and overbroad.

The board responds to those arguments, but it also suggests that the appellate courts were and are without authority to consider the issues that petitioner raises, because petitioner failed to exhaust his administrative remedies as required by ORS 144.335(1)(b). Although the board acknowledges that petitioner followed the procedures required to exhaust his administrative remedies by timely filing an administrative review request objecting to his supervisory conditions, it argues that petitioner nevertheless failed to exhaust administrative review because he did not raise the same objections in his administrative review request that he now is raising before this court. The board highlights that petitioner indicated on the form that he was challenging Sex Offender Package A as unsupported by substantial evidence, a claim not pursued on judicial review, but did not check the boxes relevant to, or otherwise identify, the...