Flores v. Board of Parole

No. 907 October 15, 2025 287

This is a nonprecedential memorandum opinion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

RICHARD JAMES FLORES,

Petitioner,

v.

BOARD OF PAROLE

AND POST-PRISON SUPERVISION,

Respondent.

Board of Parole and Post-Prison Supervision

A183609

Argued and submitted August 22, 2025.

Joel Duran, Deputy Public Defender, argued the cause

for petitioner. Also on the briefs was Ernest G. Lannet,

Chief Defender, Criminal Appellate Section, Oregon Public

Defense Commission.

Peenesh Shah, Assistant Attorney General, argued the

cause for respondent. Also on the brief were Dan Rayfield,

Attorney General, and Benjamin Gutman, Solicitor General.

Before Tookey, Presiding Judge, Kamins, Judge, and

Jacquot, Judge.

JACQUOT, J.

Vacated and remanded.

288 Flores v. Board of Parole

JACQUOT, J.

Petitioner argues that the Board of Parole and

Post-Prison Supervision (the board) erred by imposing spe-

cial conditions of release that prohibit him from having

any contact with his wife, W, and daughter, H. The board

responds that petitioner did not sufficiently “exhaust or pre-

serve his argument that the board failed to consider less

restrictive options,” and that nonetheless, his “argument is

without merit.” Because we cannot tell from the record and

the Administrative Review Responses (ARR 1 and ARR 2),

whether the board properly exercised its discretion pursu-

ant to ORS 144.102(4)(a), we vacate and remand.

W and H are not victims of petitioner’s crimes of

conviction. However, law enforcement interviewed W and H

and discovered that in the past when petitioner consumed

alcohol, he had been violent with them. Petitioner worked on

changing his behaviors with the help of prison programs and

professionals who encouraged wife’s cooperation. He and his

wife maintained daily phone contact, and had weekly visits

in-person. Both petitioner and W report that they had devel-

oped healthy boundaries. Petitioner’s judgment of conviction

noted that visits between he and daughter H were “thera-

peutically recommended.”

Prior to his release, the board imposed “special con-

dition 11,” prohibiting petitioner from having any “contact

with victim(s), [C], [T], [W], [H], including direct, indirect

second or third party contact or knowingly being within

1,000 feet of a victim’s residence, employment, school, day-

care or motor vehicle without prior written consent of the

PO.”

The board denied petitioner’s request to remove the

conditions with regard to W and H. In ARR 1, the board

indicated that the condition was “necessary to assist in

[petitioner’s] reformation and promote public safety,” citing

harmful behaviors towards W and H that occurred prior to

petitioner’s incarceration.

After the opening brief was filed in this judicial

review proceeding—in which petitioner argued that the

board exceeded its authority by failing to consider a less

Nonprecedential Memo Op: 344 Or App 287 (2025) 289

restrictive option—the board withdrew ARR 1 “to recon-

sider the order in light of the contentions raised on appeal.”

Subsequently, the board issued ARR 2, affirming its denial.

In ARR 2, the board justified the denial of petitioner’s

requested relief by incorporating additional details about

aggressive behavior by petitioner directed at W and H in

the past, and because W “enabled [petitioner’s] criminal con-

duct by purchasing firearms for [him] to use and keep even

though [he] is a convicted felon and not lawfully allowed

to possess” them. The board reiterated that the complete

prohibition on contact between petitioner and his wife and

daughter—unless prior written approval was provided by

his supervising officer—was necessary to promote reforma-

tion and public safety, including that of W and H.

The board also stated that the contact between

petitioner and W during his incarceration does not justify

removal of the special condition because those “visits took

place in a controlled environment in the presence of security

staff [and] with limited physical contact.” The board stated

that the special condition is not absolute, because the super-

vising officer can permit contact as petitioner complies with

supervision and programs.

In response, petitioner filed a supplemental brief

arguing that imposition of special condition 11 exceeded the

board’s authority because the board did not consider less

restrictive options and failed to “weigh the different inter-

ests of the parties—i.e., such as weighing the benefit of a

particular condition to the public safety and the offender’s

reformation against the burden that it would impose on the

offender” and that the prohibition on all contact with W and

H does not “fall within the range of legally permissible out-

comes.” Crombie v. Board of Parole, 325 Or App 312, 321,

528 P3d 1171 (2023) (internal quotation marks and citation

omitted).

Though the board argues that petitioner’s argu-

ment is “unexhausted and unpreserved,” we consider this

case to be sufficiently exhausted and preserved to reach the

merits. See Tuckenberry v. Board of Parole, 365 Or 640, 654-

55, 452 P3d 227 (2019) (reaching the merits of a petitioner’s

argument even though he did not “raise the exact statutory

290 Flores v. Board of Parole

authority and constitutional arguments that he [asserted]

through counsel” in his request for administrative review).

We review “for legal error, substantial evidence, and

substantial reason.” Bell v. Board of Parole, 283 Or App 711,

713, 391 P3d 907, rev den, 361 Or 645 (2017). “Substantial

evidence supports an agency’s finding when the record,

viewed as a whole, would permit a reasonable person to make

that finding.” Id. at 722 (internal quotation marks and cita-

tions omitted). Substantial reason requires that the board’s

“conclusions must reasonably follow from the facts found.”

Jacobs v. Board of Parole, 342 Or App 41, 49-50, ___ P3d ___

(2025) (internal quotation marks and citation omitted). If an

agency order is “outside the range of discretion delegated to

the agency by law” or violates a constitutional or statutory

provision, we must remand. ORS 183.482(8)(b). The board

may “impose any condition that, in light of the supervised

person’s individual circumstances, the board reasonably

could view as essential to or required for one or both of its

broad objectives of promoting public safety and assisting

in an offender’s reformation.” Crombie, 325 Or App at 320

(analyzing the board’s authority under ORS 144.102(4)(a)

(emphasis in Crombie; internal quotation marks and cita-

tion omitted)). The board must focus on the individual cir-

cumstances of the person on supervision and “may consider

more than just the narrow circumstances of an offender’s

current crimes of conviction.” Id. (internal quotation marks

and citations omitted). “[T]he board must proportion special

conditions to the risk” and “[m]ore restrictive supervision

conditions generally require greater justification.” Id. at 321

(internal quotation marks and citations omitted).

Petitioner argues that the sweeping prohibition

on any direct or indirect contact with his wife and daugh-

ter exceeds the board’s authority under ORS 144.102(4)(a)

because a prohibition on all contact (including phone and

written) with his family members cannot reasonably be jus-

tified as essential for public safety or his reformation needs.

Although the board has discretion in imposing

release conditions, that discretion is limited: ORS 144.102

(4)(a) authorizes it only to impose conditions that “the

board reasonably could view as essential to or required” for

Nonprecedential Memo Op: 344 Or App 287 (2025) 291

reformation or public safety, given the petitioner’s individ-

ual circumstances. Penn v. Board of Parole, 365 Or 607, 635,

451 P3d 589 (2019); see also Schmult v. Board of Parole, 306

Or App 350, 354, 474 P3d 920 (2020) (a “stringent condition”

requires greater justification, and the various interests of

the parties must be weighed, in consideration of the facts of

a particular case).

This record does not adequately explain why all con-

tact must be prohibited at the outset of supervision. Thus,

we remand for the board to reconsider the breadth of the

condition or to provide a more fulsome explanation of why

all forms of contact with petitioner’s family must be limited

to accomplish one of the legitimate goals of supervision. See

Crombie, 325 Or App at 321 (describing the requirement

that the board weigh the burdens imposed by a condition

against the potential reformation and safety benefits of a

particular condition).

Because petitioner’s statutory challenge is disposi-

tive, we do not reach his constitutional arguments. See Stelts

v. State of Oregon, 299 Or 252, 257, 701 P2d 1047 (1985) (pro-

viding for consideration of state statutory arguments, then

state constitutional arguments, then federal constitutional

arguments).

Vacated and remanded.