Kragt v. Board of Parole

688

Argued and submitted March 17, affirmed May 3, on petitioners petition for

reconsideration filed May 16, on respondent’s response to petition for reconsider-

ation filed May 23, reconsideration allowed by opinion July 12, 2023

See 327 Or App 25, 533 P3d 392 (2023)

RANDALL J. KRAGT,

Petitioner,

v.

BOARD OF PAROLE AND

POST-PRISON SUPERVISION,

Respondent.

Board of Parole and Post-Prison Supervision

A163421

529 P3d 1019

Petitioner seeks review of a final order of the Board of Parole and Post-Prison

Supervision. He challenges the board’s calculation of the end dates of his PPS

terms for three different convictions. Due to another pending matter, this review

proceeding was held in abeyance for most of five years. Upon reactivation, peti-

tioner moved to file an amended opening brief, which was denied, but the parties

were allowed to file supplemental briefs. In his supplemental brief, petitioner

raised a new constitutional argument that he had not made to the board or in his

opening brief. Held: The Court of Appeals rejected the arguments in petitioner’s

opening brief as not well taken. As for the new constitutional issue raised in the

supplemental brief, the Court of Appeals declined to consider that issue, because

it was not raised in the opening brief, and petitioner had not been granted per-

mission to raise a distinct new issue in the supplemental brief that could have

been raised in the opening brief.

Affirmed.

Kyle Krohn, 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.

Jonathan N. Schildt, Assistant Attorney General, argued

the cause for respondent. Also on the briefs were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Aoyagi, Presiding Judge, and Joyce, Judge, and

Jacquot, Judge.

AOYAGI, P. J.

Affirmed.

Cite as 325 Or App 688 (2023) 689

AOYAGI, P. J.

This case requires us to consider the proper uses of

a “supplemental brief” in this court. Whereas our court rules

and case law are clear about the requirements for opening

briefs and the limitations on reply briefs, we have said rel-

atively little about supplemental briefs, beyond mentioning

them in a few court rules and occasionally acknowledging

in an opinion that supplemental briefs were filed. Here, as

described below, we conclude that petitioner exceeded the

permissible scope of the supplemental brief that he was

given leave to file, when he raised a new constitutional chal-

lenge to the order on review. We therefore decline to address

that new argument, and we reject petitioner’s other argu-

ments. Accordingly, we affirm.

The relevant facts are entirely procedural. Peti-

tioner was convicted of three counts of sodomy in 1999. On

Count 1, he was sentenced to 60 months’ imprisonment, plus

post-prison supervision (PPS) for a term of 20 years less

time served. On Count 3, he was sentenced to 100 months’

imprisonment, concurrent with Count 1, plus a PPS term of

20 years less time served. On Count 5, he was sentenced to

100 months’ imprisonment, consecutive to Count 3, plus a

PPS term of 20 years less time served.

Petitioner was released from prison in 2016. He seeks

judicial review of a final order of the Board of Parole and

Post-Prison Supervision that established the end dates for

his PPS terms as April 22, 2031 (Count 1) and December 21,

2027 (Counts 3 and 5). The board issued the challenged order

in 2016, and petitioner timely sought review, but this case

was held in abeyance for most of five years while a direct

criminal appeal was litigated, and it has only recently been

reactivated.

In his opening brief, which was filed back in 2018,

petitioner challenges the board’s order, making three argu-

ments as to how the board erred in calculating his PPS

end dates. Each of those arguments has become nonviable,

for one reason or another, with the passage of time. The

first argument is based on the language of the sentencing

judgment and is no longer viable because, after petitioner

filed his opening brief, the trial court entered an amended

690 Kragt v. Board of Parole

sentencing judgment that changed the relevant language.

The second argument is that petitioner should have been

sentenced to a single PPS term, rather than three separate

PPS terms. That issue was decided against petitioner in

State v. Kragt, 304 Or App 537, 467 P3d 830 (2020) (Kragt II),

aff’d, 368 Or 577, 495 P3d 1233 (2021) (Kragt III), which was

petitioner’s direct appeal of the aforementioned amended

judgment.1 The third argument, made alternatively to the

second argument, is that we should overrule precedent and

hold that a person begins to serve the PPS term on an indi-

vidual count immediately upon completing the prison term

for that count, even if the person is still in prison on another

count. We rejected that argument in Kragt II.

After the Supreme Court issued its decision in

Kragt III, this case was reactivated. As part of his motion to

reactivate the case, petitioner requested to file an amended

opening brief so that he could omit the arguments that were

no longer viable and revise the remaining arguments in

light of Kragt II and Kragt III. The board agreed that reacti-

vation was appropriate, but it opposed allowing an amended

opening brief, instead asking us to allow supplemental

briefs “to address the appellate decisions resolving petition-

er’s direct criminal appeal and the trial court’s issuance of

a fifth amended judgment.” The board explained that its

“principal concern with petitioner’s request to withdraw the

existing briefing is that he will raise new, distinct assign-

ments of error.” The board argued that this case was “held

in abeyance because resolution of the direct criminal appeal

could affect this court’s analysis of petitioner’s existing chal-

lenge to the board’s order, not so that petitioner could raise

an entirely new challenge to that order once the criminal

appeal was resolved.” (Emphasis in original.)

We denied petitioner’s request to file an amended

opening brief. However, we allowed petitioner 21 days to file

a supplemental brief, up to 12 pages in length, if he wished,

and we allowed the board 21 days to file a supplemental

1

Except for a few months in 2018 (during which the opening brief was filed),

this case was held in abeyance from May 2017 until May 2022, while petitioner’s

appeal of the amended sentencing judgment was litigated. That litigation con-

cluded with the Supreme Court’s decision in Kragt III.

Cite as 325 Or App 688 (2023) 691

brief in response, up to 12 pages in length, if it wished. Our

order did not expressly address the permissible scope of the

supplemental briefing that was being allowed.

Petitioner filed a supplemental brief. He acknowl-

edges that the arguments that he made in his opening brief

are no longer viable, given what has occurred since that brief

was filed in 2018.2 Most of petitioner’s supplemental brief

is dedicated to a new argument that “ORS 144.103(1) vio-

lates Article I, section 16, [of the Oregon Constitution] when

applied to a person convicted of multiple offenses because

it arbitrarily extends the PPS term and more harshly pun-

ishes less serious offenses.” The thrust of petitioner’s new

argument is that it is unconstitutional to require him to

serve his longest PPS term on the conviction for which he

received the shortest prison sentence, for reasons analogous

to vertical disproportionality. Petitioner admits that he did

not make that argument to the board or in his opening brief

on judicial review.

The board responds in its own supplemental brief

that petitioner’s new constitutional challenge to the board’s

order is “unpreserved, procedurally improper, and fails on

the merits in any event.” On the middle point, the board

contends that we should not consider petitioner’s constitu-

tional argument because it was not raised in the opening

brief and was improper to raise in the supplemental brief.

At oral argument, both parties expounded on their views as

to what is and is not appropriate to raise in a supplemen-

tal brief in this court, both generally and in this case in

particular.

It is therefore necessary for us to first address

whether it was proper for petitioner to raise a new consti-

tutional argument in his supplemental brief, as that will

determine whether we address that argument on the mer-

its. We begin with an overview of the use of supplemental

briefs in this court.

2

To be precise, in his supplemental brief, petitioner asserts that “some, but

not all” of the arguments in his opening brief have been invalidated by inter-

vening events, and he specifically identifies one statutory argument as still live.

However, at oral argument, he acknowledged that we rejected the same statutory

argument in Kragt II.

692 Kragt v. Board of Parole

Supplemental briefs are little mentioned in the

Oregon Rules of Appellate Procedure. ORAP 5.55(5) pro-

vides generally that, if we give an appellant leave to file a

supplemental brief after the filing of the answering brief,

the respondent may file a supplemental brief addressing the

issues in the appellant’s supplemental brief; such a brief is

due within 21 days per ORAP 5.80(2). ORAP 4.35(6) allows

a party seeking judicial review of an agency order to file a

supplemental brief in one specific situation: If the agency

withdraws its order for reconsideration after the petitioner

has filed an opening brief, the petitioner may proceed on

the original opening brief or may file a supplemental brief.

ORAP 5.90(3) applies only to criminal cases in which court-

appointed counsel has filed a Balfour brief, and it provides

for the filing of supplemental briefs to address any argu-

ably meritorious issues that the court or counsel has iden-

tified. And ORAP 5.92 allows a party who is represented

by court-appointed counsel and dissatisfied with counsel’s

brief to move for leave to file a supplemental pro se brief. The

only other rules that mention supplemental briefs are ORAP

5.05(1)(f), which limits a supplemental brief to five pages,

unless otherwise ordered by the court, and ORAP 5.05(1)(d)

and ORAP 16.15(1), which except pro se supplemental briefs

from certain certification and formatting requirements.

It is apparent from their limited treatment in the

court rules that supplemental briefs are largely a matter

of court discretion, both in terms of when we will allow

them and what they may address. We therefore turn to our

case law, which provides some guidance on those issues. Of

course, our case law mostly identifies instances in which we

have allowed supplemental briefing, as there is usually no

reason to mention that a request for supplemental briefing

was denied.

The most common situation in which we allow supple-

mental briefing as a matter of discretion is when something

significant has changed since the opening brief was filed. We

sometimes want the parties’ input on how new developments

affect their existing arguments. See, e.g., Northwest and

Intermountain Power Producers v. PGE, 308 Or App 110, 114-

15, 480 P3d 981 (2020) (noting that we requested supplemen-

tal briefing regarding a newly promulgated administrative

Cite as 325 Or App 688 (2023) 693

rule); Rains v. Stayton Builders Mart, Inc., 289 Or App 672,

678, 410 P3d 336 (2018) (noting that we allowed supplemen-

tal briefing regarding new Supreme Court case law); City of

Cave Junction v. State of Oregon, 289 Or App 216, 220, 410

P3d 306 (2017) (noting that we requested supplemental brief-

ing regarding recent changes in federal and state marijuana

law); Helmig v. Farley, Piazza & Associates, 218 Or App 622,

624-25, 180 P3d 749, rev den, 345 Or 301 (2008) (noting that

we requested supplemental briefing as to whether the death

of the person for whom conservatorship was sought rendered

the appeal moot).

Or, if the law has materially changed since the fil-

ing of the opening brief, we may find good cause to allow the

appellant to file a supplemental brief to raise a new assign-

ment of error that was previously unavailable. See State v.

Perez-Cardenas, 305 Or App 309, 311, 471 P3d 158 (2020)

(“Although an assignment of error should be asserted in a

party’s opening brief, ORAP 5.45(1), the rule may be waived

for good cause under ORAP 1.20(5). In State v. Williams,

366 Or 495, 466 P3d 55 (2020), the court concluded that the

significant change in the law announced in Ramos consti-

tuted good cause for waiver of the general rule.”). In recent

years, for example, we have allowed criminal defendants

to file supplemental briefs to add new assignments of error

claiming plain error under Ramos v. Louisiana, 590 US ___,

140 S Ct 1390, 206 L Ed 2d 583 (2020) (regarding nonunani-

mous jury verdicts), State v. Owen, 369 Or 288, 505 P3d 953

(2022) (regarding mental-state requirements for crimes),

and State v. Hubbell, 314 Or App 844, 847-48, 500 P3d 728

(2021), rev allowed, 369 Or 504 (2022) (overruling State v.

Boyd, 92 Or App 51, 756 P2d 1276, rev den, 307 Or 77 (1988),

regarding attempted delivery of controlled substances).

There are also idiosyncratic reasons that may cause

us to allow supplemental briefing in a particular case. For

example, in Larisa’s Home Care, LLC v. Nichols-Shields, 297

Or App 219, 223, 441 P3d 613 (2019), we allowed the parties

to file supplemental briefs to respond to an amicus curiae

brief. And in Friends of Eugene v. City of Eugene, 195 Or App

20, 22, 96 P3d 1256 (2004), we allowed supplemental brief-

ing after the petitioner requested at oral argument to sub-

mit affidavits demonstrating his constitutional standing.

694 Kragt v. Board of Parole

Finally, we sometimes request supplemental brief-

ing on specific questions, where the parties’ existing briefing

has put an issue in play, but we want additional briefing on

one or more points. See, e.g., Dorn v. Three Rivers School

Dist., 306 Or App 103, 110, 473 P3d 122 (2020) (noting our

request for supplemental briefing on several procedural

issues); State v. McCarthy, 305 Or App 658, 659, 473 P3d 74

(2020) (noting our request for supplemental briefing on the

reviewability of a judgment signed by the trial court collec-

tion clerk rather than a judge); Schwartz and Battini, 289

Or App 332, 341 n 5, 410 P3d 319 (2017) (noting our request

for supplemental briefing on a legal issue of first impression,

specifically regarding the tests used in other jurisdictions).

We make several observations about supplemen-

tal briefs based on our review of the applicable rules and

existing case law. First, when a party requests to file a

supplemental brief, the party should clearly state the rea-

sons for the request and what the party wants to address in

the supplemental brief, including notifying the court if the

party intends to raise a new assignment of error or make a

distinct new argument on an existing assignment of error.

That allows the other party to clearly identify any objections

to the request. The parties’ positions necessarily inform our

expectations for supplemental briefing, if allowed, and may

also prompt us to include language in the order regarding

the permitted scope. Second, when we ask sua sponte for

supplemental briefing, we will normally identify what the

briefing should address, and we expect parties to write their

briefs accordingly. Third, if an appellant wants to raise a

belatedly identified assignment of error or distinctly new

argument that was not included in the opening brief but

could have been,3 it is generally more appropriate to request

leave to file an amended opening brief than a supplemental

brief, at least before the answering brief has been filed.

We return to the present case. This case is unusual

in that it was held in abeyance for an extremely long

3

We mean to refer to a situation where the late addition of an assignment of

error or distinct argument is not due to a change in the law or comparable inter-

vening event but, instead, reflects a realization that something was missed in

preparing the opening brief or a more general reassessment of what should have

been raised in the opening brief.

Cite as 325 Or App 688 (2023) 695

time—most of five years—during which time all of the argu-

ments made in petitioner’s opening brief ceased to be viable

due to the trial court entering an amended judgment, our

decision in Kragt II, and the Supreme Court’s decision in

Kragt III. We expect appellate counsel to make choices as to

which issues to raise and which arguments to make in an

opening brief, and it is understandable that counsel might

want to revisit those choices if the legal landscape changes

in a material way during the pendency of an appeal.

At the same time, in petitioner’s motion and the

board’s response, both parties did a good job of laying out

their intentions regarding additional briefing, which informs

how our order allowing supplemental briefing should be read.

Faced with the board’s concern that petitioner might raise

a new assignment of error or “an entirely new challenge”

to the board’s order if he was allowed to file an amended

opening brief, we denied petitioner’s request to file an

amended opening brief and instead allowed the parties to

file supplemental briefs. It is also significant that petitioner

never indicated in his motion that, given the unique circum-

stances of this case, he wanted the opportunity to raise new

issues that could have been raised earlier. Had he done so,

we would have considered that request and addressed it in

our order. Because he did not, and given the board’s position,

our order can only be understood as allowing petitioner to

file a supplemental brief to describe the effect of interven-

ing events and case law on his existing arguments, while

precluding him from raising new assignments of error or

entirely new challenges to the board’s order.

We therefore conclude that petitioner exceeded the

permissible scope of the supplemental brief that he was given

leave to file, when he raised an entirely new constitutional

challenge to the board’s order on review, and we decline to

address that new argument. To the extent that they have

not been withdrawn, we reject the arguments contained in

the opening brief, which are no longer viable for the reasons

previously discussed. Accordingly, we affirm.

Affirmed.