lower court’s authority on remand “constrained not only by the express order of the appellate court’s remand, but also by its implied directive when considered in the context of the court’s entire opinion”
How later courts described this case
- lower court’s authority on remand “constrained not only by the express order of the appellate court’s remand, but also by its implied directive when considered in the context of the court’s entire opinion”
Written by the judges who cited it.
The opinion
542
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted May 9, affirmed June 22, 2023
BRADFORD S. STEWART,
Petitioner,
v.
BOARD OF PAROLE AND
POST-PRISON SUPERVISION,
Respondent.
Board of Parole and Post-Prison Supervision
A177063
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Brett J. Allin, Deputy Public Defender, Office
of Public Defense Services, filed the brief for petitioner.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher Page, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
TOOKEY, P. J.
Affirmed.
Nonprecedential Memo Op: 326 Or App 542 (2023) 543
TOOKEY, P. J.
Petitioner has a 2012 conviction for a misdemeanor
sexual offense in California. When he moved to Oregon, he
was required to register as a sex offender. When he did so,
the Board of Parole and Post-Prison Supervision (BOPPS)
conducted a risk assessment pursuant to ORS 163A.1001
and OAR 255-085-0020 (adopting Static-99R “actuarial
instrument” to classify sex offenders), and classified peti-
tioner as a Level 3 sex offender. Petitioner challenged the
determination. In Stewart v. Board of Parole, 312 Or App
32, 492 P3d 1283 (2021) (Stewart I), we concluded that the
record lacked substantial evidence to support the scoring of
two specific items of petitioner’s Static-99R, and we reversed
and remanded the board’s order. In that opinion, we rejected
other contentions by petitioner: that BOPPS erred in fail-
ing to consider petitioner’s offense-free time post-release in
scoring the Static-99R, id. at 35; that BOPPS erred in not
taking into account petitioner’s completion of sex-offender
treatment, id. at 36; that BOPPS’s scoring of Item 2 was
not supported by substantial evidence, id.; and that BOPPS
erred in relying on dismissed charges. Id. at 37.
On remand, BOPPS reevaluated the two items that
we determined in Stewart I were not supported by substan-
tial evidence and determined that petitioner’s risk assess-
ment required a classification of Level 2. Petitioner raised
two different objections to the scoring, both of which Stewart I
had previously rejected: that BOPPS had erred in failing to
take into account petitioner’s offense-free time post-release
and erred in taking into consideration charges that had
been dismissed. BOPPS notified petitioner that it would
1
ORS 163A.100 provides:
“The State Board of Parole and Post-Prison Supervision shall, in consul-
tation with community corrections agencies, adopt by rule a sex offender risk
assessment methodology for use in classifying sex offenders. Application 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 lowest risk of reoffending
and requires a limited range of notification.
“(2) A level two sex offender who presents a moderate risk of reoffending
and requires a moderate range of notification.
“(3) A level three sex offender who presents the highest risk of reoffend-
ing and requires the widest range of notification.”
544 Stewart v. Board of Parole
not address those issues, because it considered the scope of
its remand to be limited to a reevaluation of the two spe-
cific items that we had identified as deficient in Stewart I.
Petitioner did not challenge BOPPS’s explanation as to the
scope of the remand.
Petitioner now seeks judicial review of the BOPPS
order, asserting in his first assignment of error that our
remand, “Reversed and remanded[,]” meant that the case
was remanded for BOPPS to consider anew its determina-
tion of petitioner’s classification. He contends that BOPPS
erred in failing to consider his arguments in support of
challenges that we previously rejected in Stewart as outside
the scope of the remand. The state responds that petitioner
did not preserve his contention relating to the scope of the
remand and we therefore should not address it.
We agree that the issue of the scope of the remand
was not directly raised by petitioner, but it was implicitly
raised by petitioner’s attempt to have BOPPS consider issues
that it did not resolve on remand. We conclude, however,
that the remand did not provide an opportunity for peti-
tioner to relitigate before BOPPS issues that he could have
raised or that he did raise in his first petition for judicial
review. Although the text of the disposition, “Reversed and
remanded[,]” was general, the text of the opinion in Stewart I
makes clear that the scope of the remand was to reconsider
only those aspects of the initial determination that we con-
cluded in Stewart I were not supported by substantial evi-
dence. See State v. Hightower, 368 Or 378, 387, 491 P3d 769
(2021) (lower court’s authority on remand “constrained not
only by the express order of the appellate court’s remand, but
also by its implied directive when considered in the context
of the court’s entire opinion”). BOPPS correctly concluded
the remand did not provide an opportunity for petitioner to
relitigate the entire determination, to raise new arguments,
or to raise again challenges to BOPPS’s risk assessment
that Stewart I had previously rejected.
Affirmed.