Stewart v. Board of Parole

32

Argued and submitted May 3, reversed and remanded June 3, 2021

BRADFORD SCOTT STEWART,

Petitioner,

v.

BOARD OF PAROLE AND

POST-PRISON SUPERVISION,

Respondent.

Board of Parole and Post-Prison Supervision

A170529

492 P3d 1283

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 using the

Static-99R risk assessment tool. Petitioner contends that the board made multi-

ple mistakes in its use and scoring of the Static-99R, which raised his sex offender

classification level, including a mistake in finding that it is more likely than not

that petitioner had committed certain offenses for which the charges were dis-

missed. Held: The board erred in concluding that petitioner had more likely than

not committed the offenses underlying the dismissed charges. Nothing in the

record could refute petitioner’s claim that the charges were dismissed because

officials had located the true perpetrator. Therefore, the board’s finding was not

supported by substantial evidence.

Reversed and remanded.

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.

Cite as 312 Or App 32 (2021) 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) (describ-

ing 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 scor-

ing 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 sub-

stantial 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 ques-

tionnaire, which petitioner completed. On that form, peti-

tioner 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 col-

lecting information on his criminal history, the board gave

petitioner a score of 6 on the Static-99R, which, under the

34 Stewart v. Board of Parole

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, ulti-

mately, 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 deter-

mined 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 deter-

mined 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 a whole does not contain substantial evidence to support

Cite as 312 Or App 32 (2021) 35

the board’s finding that petitioner more likely than not com-

mitted the crimes underlying the dismissed charges. We

otherwise affirm.

In his first three assignments of error, which peti-

tioner supports with a combined argument, petitioner con-

tends 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 P3d 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 acknowl-

edges 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 require-

ment 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 reason-

ably in dispute” so as to qualify as plain error. See State

v. Vanornum, 354 Or 614, 629, 317 P3d 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.”).

36 Stewart v. Board of Parole

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. The Static-99R

Coding Rules provide that treatment should not be consid-

ered 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 men-

tion, although it is not relevant to scoring, stating, “We

therefore recommend that evaluators may want to comment

on treatment participation in their reports, but this discus-

sion should be external to the Static-99R assessment.” Id.

For that reason, the board did not err when it did not take

into account petitioner’s treatment in scoring his Static-

99R. See, e.g., Baker, 305 Or App at 822 (board did not err by

not taking into account information that Coding Rules pro-

vided was discretionary to consider). To the extent petitioner

also argues that the board’s handling of his treatment is not

supported by substantial reason, we reject that contention

without additional discussion.

We turn to petitioner’s remaining assignments of

error, each of which challenges the board’s scoring of a dis-

tinct item on the Static-99R. In the main, we understand

petitioner to argue that the board’s scoring is not supported

by substantial evidence. See ORS 183.482(8)(c) (providing for

substantial evidence review of agency orders). “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). Petitioner’s fifth

assignment of error appears to challenge the board’s inter-

pretation and application of the coding rules, so we review

that one for legal error. Baker, 305 Or App at 818-19.

In the fourth assignment of error, petitioner argues

that the board’s scoring of Item 2 is not supported by substan-

tial evidence. Having considered the record and the argu-

ments, we reject that contention without further discussion.

Cite as 312 Or App 32 (2021) 37

In the fifth assignment of error, petitioner contends that

the board erred in relying on the dismissed charges in

Sacramento Case No. 04F10942 in scoring Item 5, in view of

his claim that another person committed those crimes. But,

as the board points out—and petitioner acknowledges—the

Coding Rules require the counting of dismissed charges for

Item 5 without any consideration of the factual basis for the

charges or the likelihood that the person committed them.

Coding Rules at 63-67. In view of that directive, the board’s

counting of the dismissed charges for purposes of Item 5

was not in error.

Finally, in the sixth and seventh assignments of

error, petitioner again challenges the board’s reliance on

his dismissed charges in scoring Items 8 and 9. To rely on

the dismissed charges in scoring those items, the board was

required to find that it was more likely than not that peti-

tioner committed the crimes. Coding Rules at 75-77. In this

case, the board found, based on the information contained

in the police reports that led to petitioner’s arrest on the

charges, as well as the fact that charges were filed, that

it was more likely than not that petitioner committed the

charged offenses.

That finding is not supported by substantial evi-

dence when, as required by ORS 183.482(8)(c), the whole

record is taken into account. “ ‘Whole record’ review requires

us to consider whatever evidence the record may contain

that would detract from, as well as support, the agency’s

order.” Cole/Dinsmore v. DMV, 336 Or 565, 584, 87 P3d 1120

(2004).

Here, on the point in question, the whole record

consists of the police reports describing the chain of events

that led to petitioner’s arrest and the charges against him;

a printout of court records showing that the charges were

dismissed without any indication of the grounds for the dis-

missal; and petitioner’s unrebutted representation that the

charges were dismissed because the true perpetrator was

apprehended. On that evidence, considered as a whole, the

board’s finding that it is more likely than not that petitioner

is the one who committed the charged offenses is not one a

reasonable person could make.

38 Stewart v. Board of Parole

We agree, as the board argues, that a reasonable per-

son could find from the police reports that it was more likely

than not that petitioner committed the charged offenses—if

that evidence was the only relevant evidence the record con-

tained. Although the case against petitioner laid out by the

reports is largely circumstantial, having reviewed them, it

would not be unreasonable to find that the circumstances

identified in them would allow a reasonable person to find

that petitioner was the perpetrator of the identified offenses.

We also do not doubt that, in some instances, police reports

may be sufficient to allow a reasonable person to find that

an offender more likely than not committed a dismissed

charge where, for example, a charge is dismissed as part of

a negotiated plea bargain, or because a key witness does not

show up at trial.

The problem here—what makes the board’s exclu-

sive reliance on the police reports unreasonable—is that

the charges were dismissed and the only explanation in the

record for the dismissal is that officials located the true per-

petrator, who was someone other than petitioner. Although

petitioner’s statement about the reasons for the dismissal

could be characterized as self-serving, the fact remains

that nothing in the record contradicts it or provides rational

grounds for discrediting it,1 although the basis for the dis-

missal of the charges is something that typically would be

objectively verifiable, had the board questioned petitioner’s

representation. Faced with information that charges had

been dismissed because police had determined that a dif-

ferent person had committed a crime, it is not reasonable

to disregard that information and base a decision solely on

predismissal facts. At a minimum, for a reasonable per-

son to find that petitioner more likely than not committed

the offenses underlying the dismissed charges in this case,

1

The police reports do not provide a reasonable basis for discrediting peti-

tioner’s representation about the basis for the dismissal both because they are

silent as to what transpired between petitioner’s arrest and the dismissal of the

charges, so they do not contradict petitioner’s assertion, and because of the cir-

cumstantial nature of the case, some of which points away from petitioner being

the perpetrator, some of which points toward him being the perpetrator. That is

especially so under the circumstances of this case, where the board’s apparent

decision to discredit petitioner’s representation about another person committing

the crime was based entirely on a paper record and did not involve any demeanor-

based credibility determinations.

Cite as 312 Or App 32 (2021) 39

notwithstanding the dismissal, the whole record would need

to contain some additional evidence tending to suggest that

the dismissal of the charges had nothing to do with another

person being identified by officials as the true perpetrator—

that is, some affirmative evidence that would make it rea-

sonable to continue to rely on the circumstantial case in

the police reports, notwithstanding the fact that subse-

quent events led to the dismissal of the charges. To conclude

otherwise would stand, potentially, for the proposition that

it can be reasonable to find that a person more likely than

not committed the same, undisputedly single-perpetrator

offense that a different person was found beyond a reason-

able doubt to have committed, without calling into question

the convicted person’s guilt. That proposition, which would

appear to countenance as reasonable the possibility of the

American justice system simultaneously treating more

than one person as accountable for the same, undisputedly

single-perpetrator offense, is not one we think tenable.

Accordingly, we conclude that the board’s scoring

of Items 8 and 9 is not supported by substantial evidence

and, for that reason, reverse and remand to the board. ORS

183.482(8)(c) (requiring court to “set aside or remand the

order” upon a determination that it is not supported by sub-

stantial evidence).

Reversed and remanded.