Baker v. Board of Parole

814

Argued and submitted October 1, 2019, affirmed August 12, petition for review

denied December 10, 2020 (367 Or 290)

LAVONT E. BAKER,

Petitioner,

v.

BOARD OF PAROLE AND

POST-PRISON SUPERVISION,

Respondent.

Board of Parole and Post-Prison Supervision

A168478

473 P3d 83

Petitioner seeks judicial review of his classification by the Board of Parole

and Post-Prison Supervision (board) as a Notification Level 3 (high risk) sex

offender. To determine a person’s sex offender registration requirements upon

release from prison, the board uses the “Static-99R risk assessment” to calcu-

late a final score corresponding with one of three sex offender registration lev-

els. Petitioner challenges the board’s application of the Static-99R assessment,

arguing that it miscalculated his final score. He specifically argues that the

board committed legal error and abused its discretion by misinterpreting the

assessment’s scoring rules, and that it made findings unsupported by substantial

evidence. Held: The board did not err. The board did not misinterpret the Static-

99R risk assessment’s scoring rules, and each of its findings were supported by

substantial evidence.

Affirmed.

Nicole S. Thompson argued the cause and filed the briefs

for petitioner.

E. Nani Apo, Assistant Attorney General, argued the cause

for respondent. Also on the brief were Ellen F. Rosenblum,

Attorney General, and Benjamin Gutman, Solicitor General.

Before DeHoog, Presiding Judge, and Egan, Chief Judge,

and Mooney, Judge.*

MOONEY, J.

Affirmed.

______________

* Egan, C. J., vice Hadlock, J. pro tempore.

Cite as 305 Or App 814 (2020) 815

MOONEY, J.

Upon his release from prison, petitioner was

required to be evaluated and classified as a Level 1, Level 2,

or Level 3 sex offender. His classification would, in turn,

determine the level of reporting that would be required

of him as a sex offender. Pursuant to its regulations, the

Board of Parole and Post-Prison Supervision (board) used

the “Static-99R assessment” tool to evaluate petitioner and

classify him as a Level 3 (High Risk) sex offender. Petitioner

seeks judicial review of the board’s final order under ORS

144.335(1), assigning error to its calculation of his Level 3

classification. He advances three arguments as to why the

board incorrectly determined his final score. For the rea-

sons explained below, we reject each of them and affirm the

board’s order.

Because petitioner exhausted his administrative

remedies, the board’s final order is reviewable on the bases

provided in ORS 183.482(8). ORS 144.335(3). Under 183.482

(8)(a), we review that order to determine whether the board

“erroneously interpreted a provision of law,” here, its own

rule—the Static-99R assessment tool—“and * * * a correct

interpretation compels a particular action[.]” See Gadalean

v. SAIF, 364 Or 707, 714, 439 P3d 965 (2019) (explaining

that, under ORS 183.482(8)(a), a question of law is reviewed

for legal error). When determining whether the board cor-

rectly interpreted its own rule, we defer to the board’s inter-

pretation, so long as its interpretation is not inconsistent

with the “wording of the rule itself, or with the rule’s con-

text, or with any other source of law[.]” Don’t Waste Oregon

Com. v. Energy Facility Siting, 320 Or 132, 142, 881 P2d 119

(1994). Under ORS 183.482(8)(b), we “shall remand the order

to the agency” if we find that its exercise of discretion is

“(A) Outside the range of discretion delegated to the

agency by law;

“(B) Inconsistent with an agency rule, an officially

stated agency position, or a prior agency practice, if the

inconsistency is not explained by the agency; or

“(C) Otherwise in violation of a constitutional or statu-

tory provision.”

816 Baker v. Board of Parole

Finally, under ORS 183.482(8)(c),we will set aside the final

order if it is unsupported by substantial evidence in the

record.

The facts of this case are largely procedural and

undisputed. ORS 163A.100 required the board to classify

petitioner as a Level 1, 2, or 3 sex offender upon his 2017

release from prison. As part of that evaluative process,

petitioner filled out and returned a questionnaire used by

the board to evaluate and classify sex offenders. The board

reviews both the questionnaire and evidence of the offend-

er’s criminal and personal history to tabulate a final score

on the Static-99R assessment, which corresponds with one

of Oregon’s three sex offender notification levels under ORS

163A.100. The board ultimately scored petitioner as a 6,

which was the minimum score required to classify him as

a “Level 3 (High Risk)” sex offender. ORS 163A.100(3). After

exhausting his administrative remedies challenging that

classification, he now seeks judicial review of the board’s

final order, assigning error to its calculation of his score.

Because petitioner challenges the board’s calcula-

tions under different scoring items on the Static-99R assess-

ment, we discuss additional facts below as we address each

of his arguments. We begin, however, by contextualizing

the board’s classification of petitioner through an over-

view of the relevant statutory and regulatory framework.

ORS 163A.100 requires the board to “adopt by rule a sex

offender risk assessment methodology for use in classify-

ing sex offenders.” The “[a]pplication of the risk assessment

methodology to a sex offender must result in placing the sex

offender in one of the following levels:

“(1) A level one sex offender who presents the low-

est risk of reoffending and requires a limited range of

notification.

“(2) A level two sex offender who presents a moder-

ate risk of reoffending and requires a moderate range of

notification.

“(3) A level three sex offender who presents the high-

est risk of reoffending and requires the widest range of

notification.”

Cite as 305 Or App 814 (2020) 817

ORS 163A.100. The board must classify a person convicted

of a sex crime upon discharge, parole, or release from a state

correctional facility. ORS 163A.110(2)(a)(A), (B). The level of

classification determines the intensity of the sex offender’s

reporting obligation. ORS 163A.100. The purpose of the sex

offender reporting obligation is to “assist law enforcement

agencies in preventing future sex offenses.” ORS 163A.045(1).

To carry out its statutory mandate of classifying

sex offenders upon release from custody, the board adopted

OAR 255-085-0020, which states, in part:

“(1) For classification and community notification for

adult male registrants, the classifying agency 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. Classifying agencies may

score registrants using information from previous Static-99

or Static-99R assessments. Classifying agencies shall score

and place each registrant into one of the following levels:

“(a) Notification Level 1: Low risk;

“(b) Notification Level 2: Moderate risk; or

“(c) Notification Level 3: High risk.”

The Static-99R risk assessment’s comprehensive

list of coding rules require the offender’s evaluator—the

board—to review his past behaviors and tabulate scores

based on whether those past behaviors correlate with a

likelihood of reoffending. Phenix et al, Static-99R Coding

Rules (2016), available at http://static99.org/pdfdocs/Coding_

manual_2016_InPRESS.pdf (accessed Aug 4, 2020) (Coding

Rules). The evaluator reviews a list of 10 items that have

been shown to be associated with sexual recidivism and

then scores the offender based on whether he meets the

item’s criteria. The items consist of (1) the person’s age at

release from the index sexual offense;1 (2) whether the per-

son has ever lived with an intimate partner for two continu-

ous years; (3) prior convictions related to nonsexual violence;

1

An “index offense,” for the purposes of the Static-99R assessment, refers to

the offender’s most recent crime, which, in this case, was petitioner’s charge of

sexual exploitation of a minor in Arizona. Coding Rules at 38.

818 Baker v. Board of Parole

(4) prior sexual violence convictions; (5) prior sex offenses;

(6) prior sentencing dates; (7) prior convictions for noncon-

tact sex offenses; (8) any unrelated victims; (9) any stranger

victims; and (10) any male victims.

Each item contains different scoring criteria and

available scores. For example, if an offender “has never had

an intimate adult relationship of two years’ duration,” the

evaluator would score the person a “1” on that item. Coding

Rules at 49. It is possible for an offender to score up to a 3

on certain items, while other items allow for reductions in

the score by 1 point (i.e., an item score of -1). If an offender’s

total score is equal to or greater than 6, as was petitioner’s,

the board classifies the offender as “High risk.” Id. at 12.

Petitioner argues that the board made three sepa-

rate errors in its application of the Static-99R assessment

to him. First, he argues that the board committed legal

error when it classified his 1986 conviction for first-degree

kidnapping as both a “prior non-sexual violence convic-

tion” (item 4) and as a prior sex offense (item 5). Second, he

argues that the board abused its discretion when it did not

attempt to contact his former partner to confirm his asser-

tion that he lived with her for two years, and, because it

did not, the board incorrectly gave him a score of 1 (item

2). Third, he argues that the board’s scores under items 5

and 6 are not supported by substantial evidence “because

there was no evidence in the record of any juvenile cases,”

which were relevant to its scoring on those items. For

reasons explained below, we reject each of petitioner’s

arguments.

First, petitioner argues that the board legally erred

in double-counting his 1986 conviction for first-degree kid-

napping as both a “Prior Non-Sexual Violence Conviction”

(item 4) and as a “Prior Sex Offense” (item 5). That is so, he

argues, because the state charged him with Kidnapping I

under ORS 163.235(1)(c), which required proof of intent “to

cause physical injury to the victim,” rather than under ORS

163.235(1)(e), which required proof of intent to further the

commission of rape or sodomy. As explained below, we con-

clude that the board did not commit legal error; further,

to the extent petitioner can be understood to also raise a

Cite as 305 Or App 814 (2020) 819

substantial evidence challenge to the board’s factual find-

ings, we reject that contention.

Under item 4 of the Static-99R assessment, an

offender receives one point toward his final score if his “crim-

inal record shows a separate conviction for a non-sexual vio-

lent offence prior to detection for the index offence[.]”2 Coding

Rules at 58. Under item 5 of the assessment, the offender

receives a score of 3 if, among other things, he was convicted

of at least 4 sexual offenses before the index offense. Id. at

63.

The Coding Rules for item 4 of the assessment

explicitly allow for an offender’s prior crime to be counted in

both items 4 and 5, as “both a sex offence and a non-sexual

violence offence.” Id. at 60. The rules provide an example of

a situation in which the evaluator would count the crime as

both a sex offense and a nonsexual violence offense:

“If you have an individual convicted of Kidnapping/Forcible

Confinement (or a similar offence) and it is known, based on

the Balance of Probabilities,[3] this was a sex offence—this

offence may count as the index sex offence or you may score

this conviction as a sex offence under prior sex offences,

whichever is appropriate given the circumstances. These

convictions would also count as non-sexual violence [(item

4)].”

Id. at 61 (emphasis added). In that example, if the evalua-

tor finds, by a preponderance of evidence, that the offend-

er’s behavior in a kidnapping/forcible confinement case “was

sexual,” the conviction “would count as one sex offence * * *

and one Non-Sexual Violence offence.” Id. It also counts

“[i]f the evaluator knows that the Forcible Confinement was

directed toward the victim of the sex offence[.]” Id. If, on

the other hand, the nonsexual violence was “against an inci-

dental or accidental victim[,] then it does not count[.]” Id.

The Coding Rules provide one more example in a forcible

confinement/sexual assault case:

2

We note that the Coding Rules use the term “offence” interchangeably with

the term “offense.”

3

The Static-99R assessment defines “Balance of Probabilities” as the “pre-

ponderance of evidence” standard. Coding Rules at 19.

820 Baker v. Board of Parole

“[F]orcible confinement of the victim while committing the

sex offence would count as two sex offences * * * and one

Non-Sexual Violence * * *. In contrast, forcible confinement

of the victim’s boyfriend in another room would count only

as non-sexual violence (the Sexual Assault would still count

as a sex offence).”

Id.

The rules for item 4 make clear that whether a prior

offense counts as both “non-sexual violence” and a “sexual

offense” depends on the specific facts of the crimes commit-

ted; if the “non-sexual” crime involves the same victim as

the sex crime and the offender committed the nonsexual

crime to effect the sexual offense, the assessment allows the

evaluator to score the crime both as prior nonsexual violence

(item 4) and as a prior conviction for sexual offenses (item 5).

When that is the case, the otherwise nonsexual crime (in

this case, kidnapping) can count as both nonsexual violence

under item 4 and as a sexual offense under item 5. Id.

In this case, the board determined that petitioner’s

kidnapping conviction was “directed toward the victim of”

his sexual offenses. Thus, it scored petitioner as a 1 on item 4,

counting his kidnapping conviction as a nonsexual violence,

and a 3 on item 5, counting four of his previous convictions—

including the kidnapping conviction—as prior sex offenses.

Because the Coding Rules explicitly allowed the board to

count petitioner’s kidnapping convictions under both item 4

and item 5 if it found that his kidnapping conviction was

“directed toward the victim of” his sexual crimes, the board

did not commit legal error when it double-counted that con-

viction. See ORS 183.482(8)(a) (we review the board’s order

to determine whether the board “erroneously interpreted a

provision of law and * * * a correct interpretation compels a

particular action”).

Further, substantial evidence in the record supports

the board’s finding that the facts underlying petitioner’s

1986 convictions closely match the example provided in the

coding rules, and, thus, satisfy the Coding Rules: Petitioner’s

indictment and presentence investigation (PSI) report indi-

cate that he was convicted of kidnapping, rape, and sod-

omy after he kidnapped his victim in order to commit rape

Cite as 305 Or App 814 (2020) 821

and sodomy. Thus, the board’s findings on this issue are

supported by substantial evidence.4 See ORS 183.482(c)

(“Substantial evidence exists to support a finding of fact

when the record, viewed as a whole, would permit a reason-

able person to make that finding.”).

We turn to petitioner’s second argument. Under

item 2 of the Static-99R assessment, an offender receives

one point if he “has never had an intimate adult relation-

ship of two years’ duration.” Coding Rules at 49. Petitioner

received a score of 1 on this item because the board found,

by a preponderance of evidence, that petitioner had not

been in a continuous relationship for two years. It did so

after petitioner claimed that he had, in fact, lived with an

intimate partner between 2004 and 2006. He provided the

board with her contact information and requested that it

contact her, but it did not. Instead, it considered the doc-

umentary evidence before it, including a report from his

parole officer created between 2004 and 2005. The report

indicated that petitioner lived with his grandmother for at

least some portion of that period, and it included an entry in

which petitioner denied having any intimate partners for at

least part of that time. From that evidence, the board found

that petitioner had not lived with a sexually intimate part-

ner for at least two years.

On review, we understand petitioner to argue that

the board abused its discretion when it failed to contact his

former intimate partner and that its decision is not sup-

ported by substantial evidence. Our abuse-of-discretion

review is limited in this context; we review the agency’s

exercise of discretion only to determine whether it was

“[o]utside the range of discretion delegated to the agency by

law,” ORS 183.482(8)(b)(A), “[i]nconsistent with an agency

rule, an officially stated agency position, or a prior agency

practice,” ORS 183.482(8)(b)(B),” or “[o]therwise in violation

of a constitutional or statutory provision,” ORS 183.482

(8)(b)(C). Accordingly, as argued in this case, we review the

board’s decision to determine whether its particular exercise

4

That the state did not specifically charge petitioner with kidnapping under

ORS 163.235(1)(e) is not relevant when substantial evidence in the record other-

wise supports a finding that petitioner did, in fact, kidnap the victim in order to

rape her.

822 Baker v. Board of Parole

of discretion conformed to its own rules and is supported by

substantial evidence in the record.

Because the board’s exercise of discretion conformed

to the Coding Rules provided by the Static-99R assessment,

and because its finding is supported by substantial evidence,

the board did not err by declining to contact petitioner’s

former intimate partner. The Coding Rules state that the

evaluator “should make an attempt to confirm the offender’s

relationship history through collateral sources and official

records.” Coding Rules at 49 (emphasis added). The rules

also state that it is “greatly preferred” that the evaluator

“confirm the existence of [a] relationship through collat-

eral contacts or official records,” especially “if the assess-

ment is being carried out in an adversarial context where

the offender would have a real motive to pretend to a non-

existent relationship.” Id.

Notwithstanding the Coding Rules’ recommenda-

tion that the evaluator contact collateral sources when an

offender provides them, nothing in those rules creates an

affirmative duty to do so. Id. 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. Id. Because the board does have

that discretion, petitioner cannot demonstrate that the

board acted inconsistently with an agency rule, ORS 183.482

(8)(b)(B). We therefore cannot conclude that the board was

required to contact petitioner’s collateral source. Id.; see also

Gordon v. Board of Parole, 343 Or 618, 637, 175 P3d 461

(2007) (explaining that we remand an order to the board

under ORS 183.482(8)(b)(B) only if its exercise of discretion

was inconsistent with an official agency policy, position, or

practice, and it does not satisfactorily provide a justifiable

reason for the inconsistency).

Moreover, the board’s finding related to item 2 is

supported by substantial evidence in the record because

a reasonable person could conclude, from his probation

records, that he did not have an intimate relationship for

at least a two-year period. See ORS 183.482(c) (“Substantial

evidence exists to support a finding of fact when the record,

viewed as a whole, would permit a reasonable person to

Cite as 305 Or App 814 (2020) 823

make that finding.”). Those records create a plausible infer-

ence that petitioner lived without an intimate partner for at

least a portion of the two-year period at issue. Accordingly,

the board did not err by declining to contact petitioner’s col-

lateral source and by scoring petitioner a 1 on item 2.

In petitioner’s final challenge to the board’s order,

he argues that the record lacked substantial evidence of

(1) a juvenile Sex Abuse I adjudication, which the board used

to calculate his scores under the “Prior Sex Offense” item

(item 5); and (2) the existence of five other juvenile adjudica-

tions, which the board used to calculate his scores under the

“Prior Sentencing Dates” item (item 6). He also argues that

the PSI reports, which reflect petitioner’s pre-1986 adju-

dications and convictions, were legally insufficient under

the Coding Rules to support the board’s calculation of the

number of previous offenses and sentencing dates because

those reports contain only “cursory mentions to the juvenile

cases” and are “incongruous and incomplete.” Further, by

arguing that “there was no documentation of the juvenile

case to support” the conviction for Sex Abuse I in the record,

we also understand petitioner to argue that the board com-

mitted legal error by relying on the PSI reports prepared by

the Oregon Correction’s Division at the request of the circuit

court for consideration in sentencing petitioner for his prior

convictions because the PSI reports did not constitute an

official record. We reject that argument because the coding

rules explicitly allow the board to count petitioner’s juve-

nile adjudications as prior sexual offenses and sentencing

dates if the record contains substantial supporting evidence

of those adjudications.

To score the “Prior Sex Offenses” and “Prior

Sentencing Dates” items, the Coding Rules require the

evaluator to “have access to an official criminal record as

compiled by police, court, or correctional authorities.” Coding

Rules at 68 (emphasis added). A “professional report that

mentions a previous charge/conviction” is sufficient to sat-

isfy that requirement “if it is considered credible that an offi-

cial record did/does in fact exist and has been obtained by a

professional during a previous contact (e.g., if juvenile crimi-

nal records are no longer available, but a previous probation

824 Baker v. Board of Parole

report mentions accessing that record and notes a charge

or conviction).” Id. at 20. The offender may also supplement

those reports through self-reporting. Id. at 9. The official

documents must confirm that the offender appeared in court

to be sentenced on a particular date, and that the offender

was provided “due process, resulting in * * * an admission or

finding of guilt and * * * a sanction.” Id. at 29. The assess-

ment tool provides that “anything that counts as a conviction

also counts as a sentencing date.” Id. at 36. And, although

juvenile delinquency proceedings are not considered crimi-

nal prosecutions, State v. Thompson, 166 Or App 370, 382,

998 P2d 762 (2000), the Coding Rules explicitly allow for

“juvenile offences” to count as convictions, so long as there is

“official documentation available confirming them,” Coding

Rules at 29.

The PSI reports qualify as “an official criminal

record as compiled by police, court, or correctional authori-

ties.” Coding Rules at 68. The reports note multiple charges,

convictions, and adjudications, along with their associated

dates and dispositions. The board did not commit legal error

by using the reports to calculate petitioner’s prior sex offence

and sentencing date scores.

We turn now to petitioner’s substantial evidence

argument on this point. We conclude that a reasonable per-

son could find, based upon the PSI reports as supplemented

by petitioner’s self-report of a prior adjudication for Sexual

Abuse I, that petitioner had four or more convictions for sex

offenses under item 5 (with a corresponding score of 3), and

that he had six or more prior sentencing dates under item 6

(with a corresponding score of 1). ORS 183.482(8).

The two PSI reports in the record, which were com-

pleted in 1986 and 1993, contain evidence that petitioner

had five juvenile adjudications between 1982 and 1984. As

already discussed, one of those adjudications was for Sexual

Abuse I. Each of the adjudications had its own separate sen-

tencing or disposition date. The reports also demonstrate

that petitioner was convicted of various crimes in 1986 and

1993, with a total of two sentencing dates for those convic-

tions. And those reports both reference petitioner’s juvenile

court records, indicating that those records were available

Cite as 305 Or App 814 (2020) 825

and reviewed. Further, petitioner confirmed the accuracy of

those reports when he told the board that “I have a Juvenile

‘Adjudication’ for sex abuse I,” and “6 sentencing dates as a

Juvenile were Non-Sexual ‘Adjudications.’ ”5

The PSI reports, as supplemented by petitioner’s

own report, demonstrate that the total number of prior sen-

tencing dates adds up to 7, which results in a score of 1 on

item 6. And, in addition to his three adult convictions for sex

offenses (Rape I, Sodomy I, Kidnapping I), his one juvenile

adjudication for Sexual Abuse I brings his total number of

“prior sex offenses” to 4, which results in a score of 3 on

item 5. The board did not err in its use of the PSI reports as

supplemented by petitioner’s self-report to calculate petition-

er’s scores under items 5 and 6. We conclude also that there

was substantial evidence in the record to support the board’s

calculation of petitioner’s Static-99R assessment scores and

classification of petitioner as a Level 3 sex offender.

Affirmed.

5

Petitioner raises a number of alleged discrepancies contained in the PSI

reports. For example, petitioner points to the board noting an adjudication for

“Sexual Abuse II” on 7/9/1982 and then noting in a table later on the same page

a sentencing date for an adjudication for Sexual Abuse I on 7/9/1982. The PSI

report on which the board relied for those findings identified the 7/9/1982 adjudi-

cation as being for Sexual Abuse I. In his written objections to the board’s initial

order, petitioner reported that “I have a juvenile ‘adjudication’ for Sexual Abuse

I.” We think the only reasonable resolution of the discrepancy in the board’s find-

ings is that the reference to “Sexual Abuse II” was a typographical error; that

is to say, a scrivener’s error. We think it important to note also that regardless

of whether the adjudication was for Sexual Abuse I or Sexual Abuse II, it still

qualifies as a “prior sex offence” for item 5 on the assessment tool. Lastly, because

we conclude that the PSI reports constitute substantial evidence of petitioner’s

juvenile adjudication for Sex Abuse I, we reject petitioner’s remaining arguments

related to any alleged discrepancies in the PSI reports.