Ramoz v. Board of Parole

200 April 30, 2025 No. 379

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

TALON RAMOZ,

Petitioner,

v.

BOARD OF PAROLE AND POST-PRISON

SUPERVISION,

Respondent.

Board of Parole and Post-Prison Supervision

A178286

Argued and submitted on September 18, 2023.

Anne Fujita Munsey, 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.

Timothy A. Sylwester, Assistant Attorney General,

argued the cause for respondent. Also on the brief were Ellen

F. Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Ortega, Presiding Judge, Powers, Judge, and

Hellman, Judge.

POWERS, J.

Reversed and remanded.

Cite as 340 Or App 200 (2025) 201

POWERS, J.

Petitioner seeks judicial review of an order of the

Board of Parole and Post-Prison Supervision releasing him

onto post-prison supervision (PPS) with a PPS expiration

date of September 19, 2026. As explained below, we conclude

that under the unique circumstances of this case, the board

lacked authority to implement the PPS part of petitioner’s

sentence in the manner that it did. Accordingly, we reverse

and remand.

The pertinent facts are undisputed and mostly pro-

cedural. Because the procedural context matters and the

agency record is sparse, we begin by taking judicial notice of

specified aspects of a prior judicial proceeding related to this

case. See OEC 201(b)(2) (providing that a judicially noticed

fact must be one not subject to reasonable dispute that is

“[c]apable of accurate and ready determination by resort to

sources whose accuracy cannot reasonably be questioned”);

OEC 202(1) (noting that judicially noticeable law includes

decisional law of Oregon).

Petitioner was initially convicted after a jury trial

on two counts each of first-degree rape and first-degree

unlawful sexual penetration that occurred on or around

October 24, 2015. State v. Ramoz, 299 Or App 787, 790-93,

451 P3d 1032 (2019), rev’d, 367 Or 670, 483 P3d 615 (2021).

The trial court granted a new trial after determining that

the jury had not been instructed that the state was required

to prove a mens rea element for the offenses. Id. The state

appealed, and we reversed; however, the trial court’s ruling

that petitioner was entitled to a new trial ultimately was

upheld by the Oregon Supreme Court on review. Ramoz, 367

Or at 672, 708.

After the appellate judgment issued and the case

was remanded back to the trial court, petitioner pleaded no

contest to and was convicted of two counts of attempted first-

degree sexual abuse in the same underlying criminal case.

The judgment, which is in the agency record, provides as to

Count 1 that petitioner was sentenced to the custody of the

county jail for 18 months and that petitioner “may receive

credit for time served. All time already served.” Petitioner

202 Ramoz v. Board of Parole

was also sentenced to five years of PPS “minus time actually

served pursuant to ORS 144.103.”1 On Count 2, petitioner

was sentenced to five years of PPS “minus any time incar-

cerated” but was not sentenced to any term of incarceration.

The parties agree that from petitioner’s arrest in 2015 until

the date of the sentencing after remand, which occurred on

May 21, 2021, petitioner was incarcerated in a county jail.

In an Order to Continue/Amend Supervision, the

board calculated the PPS expiration dates with the start

date on the date that petitioner was actually released from

incarceration. The board ordered that petitioner’s PPS was

for 42 months on Count 1 and expired on November 19, 2024,

and that petitioner’s PPS on Count 2 was for 60 months and

expires on May 19, 2026. Petitioner sought administrative

review, asserting that his PPS had been “extended five years

when I should have been given time served.”2 The board

denied petitioner relief, and petitioner timely initiated this

judicial review proceeding.

With that brief background in mind, we turn to the

parties’ arguments on review. Petitioner argues that the

board was required to calculate the combined PPS term

for his offenses from, and that the PPS term commenced,

when his 18-month term of imprisonment was completed

rather than on the date that he was actually released from

jail. He further contends that, given that he had spent well

over five years incarcerated in the county jail, his PPS term

commenced after the first 18 months in the county jail, as

the only term of incarceration imposed in the judgment was

18 months. That is, he agrees that the total PPS term was

properly set at 60 months, but he asserts that the 60 months

that he was in county jail when added to the 18-month

1

ORS 144.103 has been amended since the underlying conduct in this case.

Or Laws 2021, ch 653, § 7. Because the amendment does not affect our analysis,

we refer to the current version of the statute in this opinion.

2

The board argues that petitioner failed to preserve the legal arguments

that he now makes on judicial review. Petitioner argued in his request for admin-

istrative review, as he does on review, that the board did not properly credit

his time served toward his PPS. Moreover, the board’s administrative review

response demonstrates that it understood that that was petitioner’s argument. In

light of the considerations set forth in Tuckenberry v. Board of Parole, 365 Or 640,

451 P3d 227 (2019), we conclude that petitioner is not precluded from pursuing

this issue on review.

Cite as 340 Or App 200 (2025) 203

incarceration term would mean his PPS term would have

been fully served as of April 21, 2022. In making his argu-

ment, petitioner relies, for the most part, on Baty v. Slater,

161 Or App 653, 656, 984 P2d 342 (1999), adh’d to on recons,

164 Or App 779, 995 P2d 1176 (2000) (concluding that,

because PPS commences upon completion of a lawful incar-

ceration term, “[t]he earlier the term of imprisonment ends,

the earlier the term of post-supervision both begins and

ends,” and thus a correct determination of credit for time

served “does directly affect the overall length of that sen-

tence, including post-prison supervision” (emphases omit-

ted)). Thus, according to petitioner, both the incarceration

term and the PPS term for Count 1 had finished by the time

that he was actually released from jail, as more than five

years had passed. Moreover, a significant portion of the five-

year PPS term on Count 2, which began after the first 18

months of imprisonment, also had been served, and at the

time of his resentencing, he had only about 11 months of

PPS remaining to be served.

The board remonstrates that there was no error, in

essence because the original charges for which petitioner

was imprisoned in the county jail were not the offenses for

which he was ultimately convicted. The board describes the

present case as involving a situation where “petitioner had

served more than 18 months of incarceration time under the

original judgment” for rape and unlawful sexual penetra-

tion offenses, and that his only entitlement to credit for time

served would be under ORS 137.370(3), which does not apply

in this case because the judgment did not contain all the

prerequisite findings set forth in ORS 137.370(3). The board

acknowledges, however, that 18 months of the time peti-

tioner spent in the county jail counted toward petitioner’s

sentence on the first offense because the judgment specified

for that offense that “[a]ll time [was] already served,” but the

board contends that the PPS term started on the date that

petitioner was actually released from jail rather than on the

date he finished serving the 18-month sentence.

The board further argues that Baty does not apply

because (1) it concerned only whether the case was moot and

did not actually establish that a petitioner would be entitled

204 Ramoz v. Board of Parole

to a shortened term of PPS after being incorrectly denied

credit for time served; (2) it is limited to situations where

a petitioner “ends up with a reduced term of incarceration,

[and] the rules in ORS 137.370 governing credit for time

served would require a credit against the new sentence for

the amount of time the [petitioner] served under the origi-

nal sentence” (emphasis omitted); and (3) it did not involve

a PPS term imposed under ORS 144.103(1).3 In sum, in the

board’s view, petitioner was serving sentences for the rape

and unlawful sexual penetration offenses with which he

was originally charged while in jail. Thus, the board con-

tends that petitioner was entitled to 18 months’ credit for

time served on Count 1 only because the judgment specified

that that amount of time had been served, but that none of

his jail time counted toward the PPS term for either count.

To help frame our discussion, we pause to set out

the legal principles that are not in dispute. First, the par-

ties agree that petitioner’s PPS terms are governed by ORS

144.103(1), which provides that “any person sentenced to a

term of imprisonment” for violating specified statutes “shall

serve a term of active post-prison supervision that continues

until the term of the post-prison supervision, when added to

the term of imprisonment served, equals the maximum stat-

utory indeterminate sentence for the violation.” The maxi-

mum indeterminate sentence for attempted first-degree

sexual abuse is five years. ORS 161.605(3); ORS 163.427(2);

ORS 161.405(2)(C).4

In State v. Kragt, 368 Or 577, 495 P3d 1233 (2021),

the court described how multiple PPS terms under ORS

144.103(1) are to be determined: The PPS term for each

offense is determined separately by subtracting the prison

3

The board does not ask us to revisit the decision in Baty or argue that it

is plainly wrong. See generally State v. Civil, 283 Or App 395, 406, 388 P3d 1185

(2017) (explaining that overruling a prior decision requires a party to establish

that the decision was plainly wrong, a “rigorous standard grounded in presump-

tive fidelity to stare decisis”). Rather, in arguing that Baty does not apply in this

case, the board explicitly notes that it is “not necessary in this proceeding to

address whether Baty was correctly decided.”

4

Both ORS 163.427 and ORS 161.405 have been amended since the under-

lying conduct in this case. Or Laws 2021, ch 82, § 7; Or Laws 2019, ch 635, § 15a.

Because those amendments do not affect our analysis, we refer to the current

versions of the statutes in this opinion.

Cite as 340 Or App 200 (2025) 205

term for that offense from the indeterminate sentence. Id. at

586-95. The court acknowledged that OAR 213-012-0040(1)

provides that, where an “offender has been sentenced to

multiple terms of post-prison supervision, the terms of

post-prison supervision shall be served as a single term.”

Kragt, 368 Or at 589 (emphasis omitted). Thus, although

PPS terms for sentences subject to ORS 144.103(1) are each

calculated independently, they are—as the parties in this

case acknowledge—essentially merged and served concur-

rently with each other. That is, both parties agree that the

PPS term for Count 1 is 42 months (i.e., the 60-month inde-

terminate sentence minus the 18 months of incarceration

specified in the judgment) and the PPS term for Count 2

is 60 months (i.e., the 60-month indeterminate sentence for

the offense with no incarceration term to be deducted), com-

bined for a single PPS term of 60 months.5 The question is

when those 60 months began to run.

With that background in mind, we turn to the par-

ties’ arguments and begin with a discussion of the sentence

on Count 1. The board appears to take the position that the

judgment must be read to mean that the time served for

which petitioner was entitled to credit was only the term

of incarceration, with the PPS terms to commence after

petitioner’s actual release from jail. The judgment, how-

ever, does not actually attempt to make that calculation.

Cf. Nissel v. Pearce, 307 Or 102, 105-06, 764 P2d 224 (1988)

(explaining that it is up to DOC or the county sheriff where

a person has been incarcerated to make that computation

of credit for time served: “The sentencing judge simply has

no authority to order or compute credit for presentence time

served.”). Thus, the board’s argument that its action here

in determining the start date for petitioner’s PPS term was

dictated by the terms of the judgment is unpersuasive.

5

We accept at face value the parties’ agreement that the total combined PPS

term here should be 60 months. In particular, we note that the judgment can be

fairly read to provide that petitioner agreed to that length. As there was no term

of imprisonment for Count 2 in the present case, it might have been arguable that

ORS 144.103(1) was inapplicable because that statute, by its terms, applies when

someone has been sentenced “to a term of imprisonment.” However, given that

petitioner appears to have agreed to the 60-month PPS term and is not pursu-

ing any such argument, we accept the parties’ agreement that a PPS term of 60

months was proper.

206 Ramoz v. Board of Parole

We further disagree with the board’s interpreta-

tion of what happened in this case. Petitioner did not serve

his jail time under “the original judgment” for crimes other

than the two counts of attempted first-degree sexual abuse

on which he ultimately was convicted. As recounted in the

Ramoz direct appeal cases described above, although peti-

tioner initially was convicted of different sexual offenses, the

appeal was a state’s appeal after the trial court’s grant of

a new trial. While that appeal was pending, petitioner was

not serving a sentence “under the original judgment” for

rape and unlawful sexual penetration. Importantly, his case

was essentially in a pretrial posture again given the trial

court’s grant of a new trial. Thus, we cannot agree with the

board that Baty is inapplicable in the present case because

petitioner is seeking credit for time served that was actually

served for different offenses than the ones at issue here.6

Further, on this sparse record, we cannot conclude

that the board’s proposed result here is dictated by ORS

137.370(3).7 That is, we do not know whether petitioner was

recharged and if so, with what he was recharged, and we

do not know the details of his plea agreement beyond the

bare bones in the judgment that there was a plea and the

sentences were based on a “Stipulation of [the] Parties.”

Moreover, as for what is in the record, which includes the

original indictment, we do not know how it could have pro-

vided the basis for the board’s calculation. Under these cir-

cumstances, the only conclusion that we can draw is that

the facts, as provided by the agency record and our judicial

notice noted above, implicate the rule of law announced in

Baty and that petitioner is entitled to credit for time served

in the county jail that counts not only toward his sentence

of imprisonment on Count 1 but also for his PPS on Count

6

We express no opinion as to whether the board’s legal theory on this point

is otherwise sound, given that it is premised on facts not at issue here.

7

ORS 137.370(3) provides:

“When a judgment of conviction is vacated and a new sentence is thereafter

imposed upon the defendant for the same crime, a lesser included or greater

inclusive offense of the crime, or any crime constituting a violation of Oregon

law within the same county designated by the sentencing court in the judgment

as having been committed as part of the same criminal episode as the crime,

the period of detention and imprisonment theretofore served shall be deducted

from the maximum term, and from the minimum, if any, of the new sentence.”

Cite as 340 Or App 200 (2025) 207

1 as well. See Williamson v. Schiedler, 196 Or App 302, 310,

101 P3d 364 (2004) (applying Baty and explaining that the

petitioner’s term of PPS began on the date the petitioner

“legally completed his prison sentence” rather than the date

he was actually released from prison).

Turning to Count 2, we initially observe that the

sentence is potentially problematic because there are no

statutes or rules for imposition of a PPS term where there

is no incarceration term.8 However, we have already deter-

mined that the PPS term on Count 1 commenced after the

first 18 months petitioner spent in the county jail, given the

holding in Baty, and the parties are in agreement that the

combined PPS term is 60 months. We therefore conclude

that, because the combined total PPS for both offenses is 60

months, the board was obligated to run that combined PPS

term from the date on which petitioner began serving the

PPS term on Count 1.

In sum, we conclude that, under the unique circum-

stances presented here, petitioner’s calculation of when his

combined 60-month PPS term should begin and end are cor-

rect: Petitioner was to serve a 60-month PPS term that com-

menced after he had served 18 months in the county jail.

In most instances involving such incorrect calculations, we

would remand to the board to recalculate the PPS term. In

this case, however, the date on which petitioner should have

completed his PPS term has passed, and we conclude that

the proper disposition is simply to reverse and remand to

the board for termination of petitioner’s PPS.

Reversed and remanded.

8

There are, of course, felony sentences that involve no incarceration terms

but do involve supervision. Those sentences, however, are probationary sentences

and are governed by different rules not implicated by this case.