Obray v. Board of Parole

No. 83 February 7, 2024 623

This is a nonprecedential memorandum opinion

pursuant to ORAP 10.30 and may not be cited

except as provided in ORAP 10.30(1).

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

PAUL OBRAY,

Petitioner,

v.

BOARD OF PAROLE AND POST-PRISON

SUPERVISION,

Respondent.

Board of Parole and Post-Prison Supervision

A175602

Submitted October 21, 2022.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and Stephanie J. Hortsch, Deputy Public Defender,

Office of Public Defense Services, filed the briefs for

petitioner.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Stacy M. Chaffin, Assistant Attorney

General, filed the brief for respondent.

Before Ortega, Presiding Judge, Hellman, Judge, and

Landau, Senior Judge.

HELLMAN, J.

Reversed and remanded.

624 Obray v. Board of Parole

HELLMAN, J.

Petitioner seeks judicial review of a February 2021

order of the Board of Parole and Post-Prison Supervision

(the board). In that order, the board applied ORS 163A.100

and OAR 255-085-0020(2) and set petitioner’s sex offender

notification level (SONL) at Level III, the highest level. In so

doing, the board applied the version of OAR 255-085-0020

that went into effect on November 25, 2020. The rule has

since been amended, but those amendments are not at issue

in this review proceeding.

In his petition for judicial review, petitioner raises

three assignments of error. For the reasons below, we reject

petitioner’s first and second assignments of error on proce-

dural grounds. However, as to his third assignment, we con-

clude that the board erred in using the “Oregon Board of

Parole & Post-Prison Supervision SONL - Age Chart” (Age

Chart) as a means of addressing the 16 years he spent in the

community without a sexual offense (sex-offense-free time).

Thus, we reverse and remand.

We “review the board’s order to determine whether

the board erroneously interpreted a provision of law.”

Sohappy v. Board of Parole, 329 Or App 28, 35, 540 P3d

568 (2023) (citing ORS 183.482(8)(a) and ORS 144.335(3);

internal quotation marks omitted). “An agency’s interpre-

tation of its own rule is entitled to judicial deference ‘if that

interpretation is plausible given the wording of the rule, its

context, and any other source of law.’ ” Sohappy, 329 Or App

at 35 (quoting OR-OSHA v. United Parcel Service, Inc., 312

Or App 424, 434, 494 P3d 959 (2021)).

In his first and second assignments of error, peti-

tioner contends that the board erred in setting his SONL

classification as Level III and that the board violated its own

rule when it failed to account for his 16-year sex-offense-

free time in setting his SONL. Petitioner does not dispute

that the board’s final Static-99R score is correct. Instead,

he asserts that the board erred by disregarding his time in

the community without committing a sex offense and con-

tends that the error resulted in an “artificially inflated sex

offender classification level.” Petitioner acknowledges that

Nonprecedential Memo Op: 330 Or App 623 (2024) 625

he did not raise this issue to the board and asks us to relax

or set aside the administrative-exhaustion requirement,

as we have authority to do under Tuckenberry v. Board of

Parole, 365 Or 640, 647, 451 P3d 227 (2019).

Petitioner and the board dispute the type of review

we would engage in if we set aside the administrative-ex-

haustion requirement; specifically, they dispute whether

petitioner would be limited to plain-error review under

Stewart v. Board of Parole, 312 Or App 32, 35, 492 P3d 1283

(2021). However, we need not resolve that dispute. This case

is directly controlled by Lewis-Taylor v. Board of Parole, 329

Or App 53, 540 P3d 34 (2023), because it involves the identi-

cal version of OAR-255-085-0020.

As we explained in Lewis-Taylor, 329 Or App at 55,

the November 2020 version of OAR 255-085-0020 is mate-

rially different from the prior versions at issue in Watson

v. Board of Parole, 329 Or App 13, 14, 540 P3d 20 (2023),

and Sohappy, 329 Or App at 30-31 & n 1. In particular, the

November 2020 version includes the new provision that

“ ‘classifying agencies shall place registrants into

Notification Level 3 if an assessment under OAR 255-

085-0020(2) at the time of release from the index sexual

offense would place them in the highest risk category, or

Notification Level 2 if an assessment under OAR 255-085-

0020(2) at the time of release from the index sexual offense

would place them in the moderate risk category, without

considering as part of the risk assessment the reduction

of risk due to time sexual offense-free in the community.”’

Lewis-Taylor, 329 Or App at 55 (quoting OAR 255-085-0020(6)

(Nov 25, 2020)). Like the petitioner in Lewis-Taylor, petitioner

in this case does not acknowledge or address that section of

the rule. Consequently, for the same reasons that we articu-

lated in Lewis-Taylor, we conclude that “under either plain-

error review or regular review, petitioner’s arguments would

be unavailing.” Id. We thus “reject petitioner’s arguments on

procedural grounds, without reaching the merits.” Id. at 56.

In petitioner’s third assignment of error, he argues

that the board erred in using the Age Chart to score the first

risk factor in the Static-99R risk assessment tool. See Sohappy,

329 Or App at 51-52; Watson, 329 Or App at 22. Petitioner

626 Obray v. Board of Parole

again acknowledges that he did not object on the same basis

below and again asks that we relax or set aside the exhaus-

tion requirements under Tuckenberry to correct the board’s

error. For the same reasons set out in Watson, 329 Or App at

20, we conclude that setting aside the exhaustion requirement

is appropriate in this case. We thus proceed to the merits.

As we did in Watson, “we assume without decid-

ing that we are limited to plain-error review” and conclude

that the board committed plain error. Id. at 21. Our well-

established plain error standard indicates that an error is

plain when it is “an error of law, obvious and not reasonably

in dispute, and apparent on the record without requiring

the court to choose among competing inferences.” State v.

Vanornum, 354 Or 614, 629, 317 P3d 889 (2013).

Here, the board applied the Age Chart rather than

scoring petitioner on the Static-99R in accordance with the

board’s rule. The failure of the board to follow its own rule

was legal error, apparent on the record. See Watson, 329

Or App at 21. Further, to discern “whether the legal point

is obvious and not reasonably in dispute, we look to the case

law as it exists at the time of our appellate decision.” Id. (cit-

ing State v. McKinney/Shiffer, 369 Or 325, 333, 505 P3d 946

(2022)). In this case, Sohappy directly resolves the issue. In

Sohappy, we established that “use of the Age Chart violates

the Coding Rules, particularly the rule that external factors

be addressed separately from the Static-99R score, rather

than being added to the Static-99R score or used in any way

to adjust the Static-99R score.” 329 Or App at 52 (internal

quotation marks omitted).

In sum, we reject petitioner’s first and second assign-

ments of error on procedural grounds. However, we agree

with petitioner that the board plainly erred in using the Age

Chart to score Item 1 on the Static-99R risk assessment tool.

In light of “[t]he critical role that accurate risk classification

plays in meeting the statutory goal of having a sex-offender

registry that assists law enforcement in preventing future

sex offenses, ORS 163A.045(1),” we exercise our discretion to

correct the board’s plain error. Watson, 329 Or App at 26.

Reversed and remanded.