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

• Citation: 329 Or.App. 13
• Docket Number: A174076
• Decision Date: 08 November 2023
• Parties: SHONN WATSON, Petitioner, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.
• Court: Court of Appeals of Oregon

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329 Or.App. 13

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

No. A174076

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 brief for petitioner.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Christopher Page, 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. 14] AOYAGI, P. J.

Petitioner seeks judicial review of a 2020 order of the Board of Parole and Post-Prison Supervision that, pursuant to ORS 163A.100 and OAR 255-085-0020(1) (Jan 10, 2020), set his sex offender notification level (SONL) at Level 3 (High). In his first three assignments of error, petitioner contends that the board violated its own rule, OAR 255-085-0020(1) (Jan 10, 2020), when it conducted a risk assessment that did not account for sex-offense-free time in the community, thus failing to use the Static-99R rules and research as required by the rule. We addressed identical assignments of error in another case decided today, Sohappy v. Board of Parole, 329 Or.App. 28, __ P.3d __ (2023). Applying Sohappy, we agree with petitioner that the board violated its own rule, and we reverse on that basis. However, we reject petitioner's fourth and fifth assignments of error, in which he challenges how the board scored him on the "stranger victim" and "intimate partner" items on the Static-99R. Accordingly, we reverse and remand.

Unless otherwise specified, all references to OAR 255-085-0020 in this opinion are to the version that went into effect on January 10,2020, which is the version that the board applied to petitioner. In Sohappy, we addressed the version of OAR 255-085-0020 that went into effect on April 29, 2020. 329 Or.App. at 30-31. There are differences between the January 10, 2020, and April 29, 2020, versions of the rule, but they are not material to the issue on review. The current version of the rule is materially different from the versions at issue in Sohappy and this case, see id. at 31, but those amendments are not at issue in this proceeding.

I. FACTS

Petitioner has been registered as a sex offender since 1999, when he was convicted of attempted first-degree sexual penetration of an adult victim. He was released from custody on that offense in 2002. Since 2002, petitioner has been convicted of multiple nonperson offenses (such as forgery and drug crimes) but no sexual offenses.

In 2013, the legislature enacted what is now ORS 163A. 100, creating three different sex offender notification

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[329 Or.App. 15] levels-Level 3 for offenders presenting the highest risk of committing another sex offense, Level 2 for offenders presenting a moderate risk of committing another sex offense, and Level 1 for offenders presenting the lowest risk of committing another sex offense. The goal was to stratify the registry based on sexual recidivism risk, as well as provide a mechanism to remove people from the registry, so as to make the registry more useful to law enforcement for preventing future sex offenses by making it possible to identify past offenders who present a high risk of committing another sex offense. Sohappy, 329 Or.App. at 37-39. The legislature tasked the board with classifying over 19,000 existing registrants, a process that is still ongoing, as well as all new registrants. Id. at 39-41.

In early 2020, the board conducted a risk assessment of petitioner for the purpose of determining his SONL. Under OAR 255-085-0020(1), the board was required to use "the Static-99R actuarial instrument * * * along with attending rules and research found on http://www.static99.org/" to conduct the risk assessment. The board initially calculated petitioner's score on the Static-99R as "7" points but, after considering written objections, changed his score to "6" points. Based solely on that score, the board set petitioner's SONL at Level 3. That is, it assessed him as presenting a high risk of committing another sex offense. The board issued a final order to that effect, notifying petitioner that the order 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. As previously described, petitioner contends that the board violated OAR 255-085-0020(1) when it conducted a risk assessment that did not account for sex-offense-free time in the community, and he also challenges how the board scored him on two particular Static-99R items. We begin with the latter.

II. PETITIONER'S STATIC-99R SCORE

The Static-99R actuarial instrument is discussed in some detail in Sohappy, 329 Or.App. at 41-45. As relevant here, to determine a person's Static-99R "score," the evaluator must score 10 individual factual items regarding

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[329 Or.App. 16] the person's personal and criminal history as of the date of the index offense or, for some items, the date of release for the index offense. Id. at 41-42 (listing the 10 items). Petitioner challenges how he was scored on two of the items: first, whether he had ever committed a sex offense against a stranger, and, second, whether he had ever lived with an intimate partner for two continuous years. Petitioner raised the same challenges to the scoring of those items in his written objections to the board's order, thus exhausting his administrative remedies.

The Static-99R Coding Rules govern the scoring of the Static-99R, including addressing how each of the 10 factual items is to be scored. See Amy Phenix, Yolanda Fernandez, Andrew J. R. Harris, Maaike Helmus, R. Karl Hanson, & David Thornton, Static-99R Coding Rules Revised, 2016, available at https://saarna.org/static-99/ (accessed Oct 9, 2023) (Coding Rules).^[1] Because scoring an individual item requires both making a factual finding and applying the Coding Rules, a challenge to how a person was scored on an item may implicate more than one standard of review. We review factual findings for substantial evidence. ORS 144.335(3). "Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding." ORS 183.482(8)(c). "[W]e review for legal error the board's interpretation of the Static-99R Coding Rules." Stewart v. Board of Parole, 312 Or.App. 32, 36, 492 P.3d 1283 (2021).

Here, petitioner was scored one point for the "stranger victim" item, based on a finding that he was a "stranger" to the victim of his index sex offense (the 1999 offense). "A victim is considered a stranger if the victim did not know the offender (or vice versa) 24 hours before the offense." Coding Rules at 82. The Coding Rules address what it means to "know" a person. See id. The standard for knowing a person is "quite low but does involve some level of interaction." Id. Petitioner argues that the "stranger" finding is not supported by substantial evidence or that the

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[329 Or.App. 17] board misapplied the Coding Rules. Having reviewed the record, we agree with the board that there is enough evidence to support the finding that petitioner and the victim met for the first time on the day of the crime and, thus, were strangers. Further, given that finding, the board correctly applied the Coding Rules to score one point. We therefore reject the fourth assignment of error.

Petitioner was also scored one point for the "intimate partner" item, based on a finding that he had never as an adult cohabitated with someone in an intimate relationship for two years or longer.^[2] See Coding Rules at 49-51 (detailing how to determine whether a person has had a qualifying relationship). Under the Coding Rules, a person should be scored one point if the evaluator finds that the person has never had a qualifying relationship, zero points if the evaluator finds that the person has had a qualifying relationship, or zero points if there is no credible evidence from which to make a finding. Id. at 49. The evaluator "should make an attempt to confirm the offender's relationship history through collateral sources and official records" but, absent such information, may rely on self-reported information that is deemed credible. Id.; see also Baker v. Board of Parole, 305 Or.App. 814, 822, 473 P.3d 83 (2020) ("The rules' use of the words 'should attempt' and 'greatly preferred' indicate that the board enjoys at least some discretion over the decision to contact a collateral source.").

Petitioner gave conflicting self-reports to the board as to whether he had had a qualifying relationship. On the initial questionnaire, he denied it. Later, before the board issued its SONL order, petitioner sent the board a letter providing the name of a person with whom he had a four-year intimate relationship, but the board determined that the relationship did not meet the cohabitation requirement,

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[329 Or.App. 18] which petitioner does not challenge. Yet later, after the board issued its initial SONL order, in his written objections, petitioner identified a new person, J, with whom he claimed to have cohabitated for four years (including two years as an adult). The board considered that assertion but, based on collateral sources, concluded that petitioner's initial self-report was more credible than his later self-report.

We agree with petitioner that the collateral sources on which the board relied were weak, in that they allowed only a weak inference that petitioner did not live with J for a full two years as an adult.^[3] Standing alone, the existing collateral evidence would not support an affirmative finding that petitioner never had a qualifying relationship, such that the...