Watson v. Board of Parole

No. 575 November 8, 2023 13

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

SHONN WATSON,

Petitioner,

v.

BOARD OF PAROLE AND POST-PRISON

SUPERVISION,

Respondent.

Board of Parole and Post-Prison Supervision

A174076

Submitted November 21, 2022.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and Stephanie J. Hortsch, 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 Aoyagi, Presiding Judge, and Lagesen, Chief

Judge, and Jacquot, Judge.

AOYAGI, P. J.

Reversed and remanded.

14 Watson v. Board of Parole

AOYAGI, P. J.

Petitioner seeks judicial review of a 2020 order of the

Board of Parole and Post-Prison Supervision that, pursuant

to ORS 163A.100 and OAR 255-085-0020(1) (Jan 10, 2020),

set his sex offender notification level (SONL) at Level 3 (High).

In his first three assignments of error, petitioner contends

that the board violated its own rule, OAR 255-085-0020(1)

(Jan 10, 2020), when it conducted a risk assessment that did

not account for sex-offense-free time in the community, thus

failing to use the Static-99R rules and research as required

by the rule. We addressed identical assignments of error in

another case decided today, Sohappy v. Board of Parole, 329

Or App 28, ___ P3d ___ (2023). Applying Sohappy, we agree

with petitioner that the board violated its own rule, and we

reverse on that basis. However, we reject petitioner’s fourth

and fifth assignments of error, in which he challenges how

the board scored him on the “stranger victim” and “intimate

partner” items on the Static-99R. Accordingly, we reverse

and remand.

Unless otherwise specified, all references to OAR

255-085-0020 in this opinion are to the version that went into

effect on January 10, 2020, which is the version that the board

applied to petitioner. In Sohappy, we addressed the version

of OAR 255-085-0020 that went into effect on April 29, 2020.

329 Or App at 30-31. There are differences between the

January 10, 2020, and April 29, 2020, versions of the rule,

but they are not material to the issue on review. The current

version of the rule is materially different from the versions

at issue in Sohappy and this case, see id. at 31, but those

amendments are not at issue in this proceeding.

I. FACTS

Petitioner has been registered as a sex offender

since 1999, when he was convicted of attempted first-degree

sexual penetration of an adult victim. He was released from

custody on that offense in 2002. Since 2002, petitioner has

been convicted of multiple nonperson offenses (such as forg-

ery and drug crimes) but no sexual offenses.

In 2013, the legislature enacted what is now ORS

163A.100, creating three different sex offender notification

Cite as 329 Or App 13 (2023) 15

levels—Level 3 for offenders presenting the highest risk of

committing another sex offense, Level 2 for offenders pre-

senting a moderate risk of committing another sex offense,

and Level 1 for offenders presenting the lowest risk of com-

mitting another sex offense. The goal was to stratify the

registry based on sexual recidivism risk, as well as provide

a mechanism to remove people from the registry, so as to

make the registry more useful to law enforcement for pre-

venting future sex offenses by making it possible to identify

past offenders who present a high risk of committing another

sex offense. Sohappy, 329 Or App at 37-39. The legislature

tasked the board with classifying over 19,000 existing reg-

istrants, a process that is still ongoing, as well as all new

registrants. Id. at 39-41.

In early 2020, the board conducted a risk assessment

of petitioner for the purpose of determining his SONL. Under

OAR 255-085-0020(1), the board was required to use “the

Static-99R actuarial instrument * * * along with attending

rules and research found on http://www.static99.org/” to con-

duct the risk assessment. The board initially calculated peti-

tioner’s score on the Static-99R as “7” points but, after con-

sidering written objections, changed his score to “6” points.

Based solely on that score, the board set petitioner’s SONL

at Level 3. That is, it assessed him as presenting a high risk

of committing another sex offense. The board issued a final

order to that effect, notifying petitioner that the order was

not subject to administrative review under OAR 255-080 but

was subject to judicial review under ORS 144.335.

Petitioner filed a timely petition for judicial review. As

previously described, petitioner contends that the board vio-

lated OAR 255-085-0020(1) when it conducted a risk assess-

ment that did not account for sex-offense-free time in the com-

munity, and he also challenges how the board scored him on

two particular Static-99R items. We begin with the latter.

II. PETITIONER’S STATIC-99R SCORE

The Static-99R actuarial instrument is discussed

in some detail in Sohappy, 329 Or App at 41-45. As rele-

vant here, to determine a person’s Static-99R “score,” the

evaluator must score 10 individual factual items regarding

16 Watson v. Board of Parole

the person’s personal and criminal history as of the date

of the index offense or, for some items, the date of release

for the index offense. Id. at 41-42 (listing the 10 items).

Petitioner challenges how he was scored on two of the items:

first, whether he had ever committed a sex offense against

a stranger, and, second, whether he had ever lived with an

intimate partner for two continuous years. Petitioner raised

the same challenges to the scoring of those items in his

written objections to the board’s order, thus exhausting his

administrative remedies.

The Static-99R Coding Rules govern the scoring

of the Static-99R, including addressing how each of the

10 factual items is to be scored. See Amy Phenix, Yolanda

Fernandez, Andrew J. R. Harris, Maaike Helmus, R. Karl

Hanson, & David Thornton, Static-99R Coding Rules

Revised, 2016, available at https://saarna.org/static-99/

(accessed Oct 9, 2023) (Coding Rules).1 Because scoring an

individual item requires both making a factual finding and

applying the Coding Rules, a challenge to how a person was

scored on an item may implicate more than one standard of

review. We review factual findings for substantial evidence.

ORS 144.335(3). “Substantial evidence exists to support a

finding of fact when the record, viewed as a whole, would

permit a reasonable person to make that finding.” ORS

183.482(8)(c). “[W]e review for legal error the board’s inter-

pretation of the Static-99R Coding Rules.” Stewart v. Board

of Parole, 312 Or App 32, 36, 492 P3d 1283 (2021).

Here, petitioner was scored one point for the

“stranger victim” item, based on a finding that he was a

“stranger” to the victim of his index sex offense (the 1999

offense). “A victim is considered a stranger if the victim did

not know the offender (or vice versa) 24 hours before the

offense.” Coding Rules at 82. The Coding Rules address

what it means to “know” a person. See id. The standard for

knowing a person is “quite low but does involve some level

of interaction.” Id. Petitioner argues that the “stranger”

finding is not supported by substantial evidence or that the

1

The Coding Rules are also available as an exhibit to the board’s current

rules. OAR 255-085-0020 (Aug 16, 2022) (Exhibit STATIC-99R). We agree with the

parties that the Coding Rules are “attending rules” under OAR 255-085-0020(1).

Cite as 329 Or App 13 (2023) 17

board misapplied the Coding Rules. Having reviewed the

record, we agree with the board that there is enough evi-

dence to support the finding that petitioner and the victim

met for the first time on the day of the crime and, thus, were

strangers. Further, given that finding, the board correctly

applied the Coding Rules to score one point. We therefore

reject the fourth assignment of error.

Petitioner was also scored one point for the “intimate

partner” item, based on a finding that he had never as an

adult cohabitated with someone in an intimate relationship

for two years or longer.2 See Coding Rules at 49-51 (detailing

how to determine whether a person has had a qualifying

relationship). Under the Coding Rules, a person should be

scored one point if the evaluator finds that the person has

never had a qualifying relationship, zero points if the evalu-

ator finds that the person has had a qualifying relationship,

or zero points if there is no credible evidence from which

to make a finding. Id. at 49. The evaluator “should make

an attempt to confirm the offender’s relationship history

through collateral sources and official records” but, absent

such information, may rely on self-reported information that

is deemed credible. Id.; see also Baker v. Board of Parole, 305

Or App 814, 822, 473 P3d 83 (2020) (“The rules’ use of the

words ‘should attempt’ and ‘greatly preferred’ indicate that

the board enjoys at least some discretion over the decision to

contact a collateral source.”).

Petitioner gave conflicting self-reports to the board

as to whether he had had a qualifying relationship. On the

initial questionnaire, he denied it. Later, before the board

issued its SONL order, petitioner sent the board a letter

providing the name of a person with whom he had a four-

year intimate relationship, but the board determined that

the relationship did not meet the cohabitation requirement,

2

The Coding Rules require the evaluator to consider only cohabitation that

occurred before release for the index sex offense. Coding Rules at 49. However,

for some registrants, the board considers cohabitation through the SONL assess-

ment date. Oregon Board of Parole and Post-Prison Supervision, SONL - Age

Chart, available at https://www.oregon.gov/boppps/Documents/R%26R/S99R_

AgeChart2019.pdf (accessed Oct 9, 2023); see also Sohappy, 329 Or App 51-52

(discussing board practice). That variation is not at issue here, and the board

otherwise follows the Coding Rules in scoring the “intimate partner” item, so we

discuss only the Coding Rules.

18 Watson v. Board of Parole

which petitioner does not challenge. Yet later, after the

board issued its initial SONL order, in his written objec-

tions, petitioner identified a new person, J, with whom he

claimed to have cohabitated for four years (including two

years as an adult). The board considered that assertion but,

based on collateral sources, concluded that petitioner’s ini-

tial self-report was more credible than his later self-report.

We agree with petitioner that the collateral sources

on which the board relied were weak, in that they allowed

only a weak inference that petitioner did not live with J for

a full two years as an adult.3 Standing alone, the existing

collateral evidence would not support an affirmative find-

ing that petitioner never had a qualifying relationship, such

that the board would need to either consult additional col-

lateral sources to make an affirmative finding or score a

zero on this item based on the lack of credible information.

See Coding Rules at 49 (“If no information is available this

item should be scored a ‘0’ (zero)—as if the offender has lived

with an intimate partner for two years.”). But the collateral

sources on which the board relied do not stand alone here.

Although certainly not definitive, they provided some basis

for the board to credit petitioner’s initial self-report denying

a qualifying relationship over his last-minute assertion of

a qualifying relationship with a person who he had never

mentioned until after the board issued its initial order. We

therefore reject the fifth assignment of error.

III. PETITIONER’S SEX-OFFENSE-FREE TIME

We next consider petitioner’s first three assign-

ments of error, which, as previously described, are identi-

cal to the assignments of error in Sohappy, 329 Or App at

45-46. We limit our discussion to issues unique to this case.

For a fuller understanding of the issues addressed herein,

3

Petitioner had been scored “1” on this item on two prior Static-99 assess-

ments, but only the scores are in the record, not the information on which they

were based. See OAR 255-085-0020(1) (“Classifying agencies may score regis-

trants using information from previous Static-99 or Static-99R assessments.”

(Emphasis added.)) Also, petitioner had made statements at different points

in the past regarding his intimate-relationship status in September 1991 and

regarding his longest intimate relationship being with someone who was not J.

Suffice it to say that those statements are not necessarily inconsistent with peti-

tioner having lived with J for two years as an adult, but they make his claim to

have done so at least somewhat less credible.

Cite as 329 Or App 13 (2023) 19

we direct the reader to Sohappy, also decided today, which

discusses the history of Oregon’s sex-offender registry, the

board’s promulgation and interpretation of a substantively

identical version of OAR 255-085-0020(1), the Static-99R

risk assessment methodology, and arguments nearly identi-

cal to petitioner’s.

A. Procedural Issues

This case comes to us in a different posture than

Sohappy. The petitioner in Sohappy had raised the issue of

sex-offense-free time to the board, thereby exhausting any

administrative remedies available. Sohappy, 329 Or App

at 33-35. By contrast, in this case, petitioner acknowledges

that he did not raise the issue to the board. Relying on

Tuckenberry v. Board of Parole, 365 Or 640, 642, 451 P3d

227 (2019), he asks us to relax or set aside the exhaustion

requirement. The board urges us not to reach the merits,

given the failure to exhaust administrative remedies.

As mentioned in Sohappy, 329 Or App at 33, it is

“not at all clear” that the board actually provides regis-

trants with an opportunity to raise to the board this type

of challenge to an SONL order. OAR 255-085-0040(1) pro-

vides that written objections to an SONL order “are lim-

ited to presenting factual evidence regarding the Static-

99R score and must be plain, concise, and directly related

to specific items on the Static-99R that the registrant claims

were not scored correctly.”4 (Emphasis added.) The “Notice of

Rights” and the “Written Objections” form that petitioner

received, which are identical to those in Sohappy, reiterate

that limitation. See Sohappy, 329 Or App at 34 (describing

documents). If the board did not provide an opportunity for

petitioner to challenge the board’s interpretation of OAR

255-085-0020(1) as relevant to the SONL order, then there

was no administrative remedy to exhaust. See Fifth Avenue

Corp. v. Washington Co., 282 Or 591, 618, 581 P2d 50 (1978)

(“It goes without saying that for an administrative remedy

to be ‘exhaustible’ it must be available.”); Golden Rule Farms

v. Water Resources Dept., 321 Or App 43, 48, 515 P3d 908

4

The current version of OAR 255-085-0040(1) is materially the same as the

version in effect when the board issued the order on review, so we cite the current

rule for convenience.

20 Watson v. Board of Parole

(2022) (explaining that a person generally must present an

issue to the agency before it will be considered on judicial

review, if the agency “provides a process” to raise it).

However, we need not decide that issue, which the

parties do not address, because, even assuming that an

opportunity existed to raise the issue to the board and that

it was forgone, we agree with petitioner that it is appropriate

to relax or set aside the administrative-exhaustion require-

ment here. The doctrine of administrative exhaustion “is a

judicial policy that promotes orderly procedures and good

administration, but [it] has exceptions” and the exhaustion

requirement for board orders, codified in ORS 144.335(1)(b),

“remains flexible under general prudential exhaustion prin-

ciples.” Tuckenberry, 365 Or at 647, 652 (internal quotation

marks omitted). Courts “may relax or set aside [the require-

ment] entirely, depending on the circumstances.” Id. at 647.

For several reasons, this is an appropriate circum-

stance to relax or set aside the requirement. First, given the

text of OAR 255-085-0040(1) and the content of the notice

and the written-objections form sent to petitioner, it was

at least unclear whether petitioner could raise the issue.

Second, the issue is one of public interest, in that inaccu-

rate classification of sex offenders undermines the purpose

of the SONL statute, which is to help law enforcement pre-

vent future sex crimes by enabling them to direct resources

toward past sex offenders who present the highest risk of

committing new sex crimes. See Sohappy, 329 Or App at

36-40 (discussing statutory purpose); see also Tuckenberry,

365 Or at 655 (“[P]etitioner raises important issues of public

interest concerning the board’s statutory authority to impose

a special condition that purports to regulate all of a parol-

ee’s ‘intimate’ relationships and encounters.”). Third, raising

the issue to the board would have been futile, as the board

presumably would have taken the same position that it did

when the petitioner in Sohappy raised it. See Tuckenberry,

365 Or at 655 (concluding that raising the issue would have

been futile, where another petitioner had raised the issue

unsuccessfully in a different case decided the same day).

Ultimately, we are persuaded that, as in

Tuckenberry, 365 Or at 655, it is appropriate to relax or set

Cite as 329 Or App 13 (2023) 21

aside the administrative-exhaustion requirement and pro-

ceed to the merits of petitioner’s arguments.

The next question is whether, in the administrative

context, relaxing or setting aside the exhaustion requirement

means that we are limited to plain-error review. See ORAP

5.45(1) (“No matter claimed as error will be considered on

appeal unless the claim of error was preserved in the lower

court and is assigned as error in the opening brief in accor-

dance with this rule, provided that the appellate court may,

in its discretion, consider a plain error.”). We have expressed

that understanding at least once since Tuckenberry, in

Stewart, and petitioner provisionally requests plain-error

review in light of Stewart.

For present purposes, we assume without deciding

that we are limited to plain-error review. See Stewart, 312

Or App at 35 (“Even if we were to conclude that the exhaus-

tion requirement should be relaxed under Tuckenberry,

such that only preservation-of-error principles were in play,

neither of the first two assigned errors is ‘obvious and not

reasonably in dispute’ so as to qualify as plain error.”); but

see also Tuckenberry, 365 Or at 642 (proceeding to regu-

lar review after relaxing the administrative exhaustion

requirement); Forbus v. Board of Parole, 309 Or App 296,

301, 482 P3d 95 (2021) (same). An error is “plain” when it is

an error of law, the legal point is obvious and not reasonably

in dispute, and the error is apparent on the record. State v.

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

B. Merits

Petitioner contends that the board has implausibly

interpreted OAR 255-085-0020(1) as allowing it to disregard

the Static-99R rules and research regarding sex-offense-free

time in the community when conducting a risk assessment for

purposes of setting a registrant’s SONL. The alleged error is

one of law, as well as being apparent on the record. Vanornum,

354 Or at 629. As for 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. State v. McKinney/Shiffer,

369 Or 325, 333, 505 P3d 946 (2022). In other words, we look

to Sohappy, as current case law directly on point.

22 Watson v. Board of Parole

OAR 255-085-0020(1) requires the board to “ ‘use

the Static-99R actuarial instrument on the Board’s web-

site * * * along with attending rules and research found

on http://www.static99.org/, to conduct a sex offender risk

assessment’ ” of an adult male sex offender to set his SONL.

In Sohappy, we held that the board’s interpretation of OAR

255-085-0020(1) (Apr 29, 2020)—which is identical to the

version of OAR 255-085-0020(1) at issue here—was implau-

sible “and that the only plausible interpretation of the rule

required the board to use the attending rules and research

on the Static-99R website regarding sex-offense-free time in

the community in setting petitioner’s risk level.” 329 Or App

at 30. We further held that the board’s use of its “Age Chart”

in lieu of the Static-99R methodology violated the Coding

Rules and was not a “permissible way to account for sex-of-

fense-free time in the community.” Id. at 51.

It would seem to follow that the legal points at issue

in this case are now “obvious” and not reasonably in dispute.

However, while petitioner’s arguments in this case are essen-

tially identical to the petitioner’s arguments in Sohappy,

and while some of the board’s arguments in this case are

the same as the board’s arguments in Sohappy (and thus

already addressed in Sohappy), the board has made three

substantive arguments in this case that it did not make in

Sohappy. We pause to address those arguments.5

First, in its answering brief in this case, the board

argues that OAR 255-085-0020(1) “incorporates the Coding

Rules and the Age Chart” and, relatedly, argues that, because

“[t]he board’s website included links to the Static-99R scoring

sheet, the Coding Rules, and the Age Chart,” a classifying

agency “must” utilize the Age Chart when conducting a risk

assessment under OAR 255-085-0020(1). (Emphases added.)

That is wrong. OAR 255-085-0020(1) requires the

board to use “the Static-99R actuarial instrument on the

5

This case was submitted on the same date as Sohappy and decided by the

same panel as Sohappy. Although we limit our discussion in each opinion to the

parties’ arguments in that case, we were aware of the board’s arguments in this

case when deciding Sohappy, and vice versa. Because both cases were under con-

sideration by the same panel at the same time, and given the nature of the legal

issue (interpretation of a board rule), we effectively considered all of the board’s

arguments in both cases.

Cite as 329 Or App 13 (2023) 23

Board’s website” and “the attending rules and research” on

the Static-99R website to conduct the risk assessment. It is

true, as the board points out, that the board’s website con-

tained a link to the board’s Age Chart. See Sohappy, 329

Or App at 51 (“The ‘Age Chart’ is not something available on

the Static-99R website. Rather, it is a tool developed by an

unknown person and used by the board in scoring Items 1 and

2 of the Static-99R.”). But the board putting a link to its Age

Chart on its website does not mean that OAR 255-085-0020(1)

“incorporates” the Age Chart or that classifying agencies

“must” use the Age Chart. To the contrary, the only item on

the board’s website that the rule can be said to “incorporate” is

the Static-99R actuarial instrument. OAR 255-085-0020(1)

(requiring use of “the Static-99R actuarial instrument on

the Board’s website”). Furthermore, the rule unequivocally

requires use of the Coding Rules on the Static-99R web-

site—see OAR 255-085-0020(1) (requiring use of “attend-

ing rules and research found on http://www.static99.

org/”)—and using the Age Chart violates the Coding

Rules. Sohappy, 329 Or App at 52 (so holding). We there-

fore reject the board’s argument that OAR 255-085-0020(1)

incorporates the Age Chart and requires use of the Age

Chart.

Second, the board argues that, because ORS

163A.100 does not distinguish between existing registrants

and new registrants, it makes sense for the board to inter-

pret OAR 255-085-0020(1) as allowing it to disregard sex-of-

fense-free time in the community in conducting risk assess-

ments of existing registrants, given that new registrants do

not have any sex-offense-free time.

It is true that ORS 163A.100 does not distinguish

between existing registrants, i.e., people who were first

required to register before January 1, 2014, when the three-

tiered system went into effect, and new registrants. It is also

true that OAR 255-085-0020(1) requires classifying agen-

cies to use the same risk assessment methodology for exist-

ing and new registrants. It does not follow, however, that

OAR 255-085-0020(1) allows classifying agencies to disre-

gard the Static-99R rules and research regarding sex-of-

fense-free time in the community when classifying existing

24 Watson v. Board of Parole

registrants, because new registrants are just being released

into the community and therefore have no comparable sex-

offense-free time. The legislature directed the board to adopt

a risk-assessment methodology, and the board adopted the

Static-99R actuarial instrument and its attending rules

and research. The Static-99R actuarial instrument and its

attending rules and research require the consideration of

sex-offense-free time to achieve a statistically sound risk

assessment. Sohappy, 329 Or App at 48-50. The fact that

some registrants do not have sex-offense-free time does not

mean that the board can disregard it for those registrants

who have it.6 Indeed, it is precisely the existence of factual

differences between registrants that causes them to present

different levels of risk to the community and that allows for

different risk classifications.

Third, the board argues that conducting a risk

assessment that complies with the Static-99R Coding Rules

and current research on the Static-99R website would result

in classification decisions contrary to the legislative intent.

That argument turns on the inclusion of several specific provi-

sions in the 2013 legislation that created the three-tiered sex-

offender registry: that registrants must wait until 10 years

after release from supervision to request reclassification, ORS

163A.125(2)(e); that registrants previously classified as “pred-

atory sex offenders” or “sexually violent dangerous offend-

ers” are automatically classified as Level 3, Or Laws 2013,

ch 708, § 7(2)(b)(A), (B), compiled as a note after ORS 163A.110;

that any registrant initially classified as Level 3 can never

be reclassified below Level 2, ORS 163A.125(3)(b); and that

any registrant convicted of a person felony or person Class A

misdemeanor since the index sex offense cannot be reclassi-

fied or relieved from registration, ORS 163A.125(3)(a).

It is true that the foregoing statutory provisions

will keep certain past sex offenders on the registry for their

6

As for the board’s argument that the legislature expected the board to use

existing Static-99R scores for any existing registrants who had them and that

the legislature did not express any concern about the scores not reflecting sex-

offense-free time, we already considered that argument in Sohappy. See Sohappy,

329 Or App at 47 n 10. It is also worth noting that a person’s Static-99R score for

the same index offense never changes (assuming it was accurately calculated), id.

at 42-43, so the fact that an existing Static-99R score might be reused does not

mean much.

Cite as 329 Or App 13 (2023) 25

entire lives and keep them classified at a higher SONL

than would be supported by current Static-99R rules and

research regarding the recidivism risk of past offenders who

have lived in the community for an extended period of years

without committing any new sex offenses. That may in part

reflect the fact that research regarding the effect of sex-of-

fense-free time in the community on sexual recidivism risk

was much less developed in 2013. Sohappy, 329 Or App at 47

n 10. In any event, that is a legislative policy choice.

The existence of those statutory provisions does not

mean, however, that the board can disregard its own rule

in classifying existing registrants, based on a belief that,

had the legislature realized that many existing registrants

would have been living in the community for years without

sexually reoffending and might pose little or no statistical

risk of sexually reoffending by the time of classification, the

legislature would have allowed for different risk assessment

methodologies for new and existing registrants—with new

registrants classified based on their current recidivism risk,

but existing registrants classified based on their past recid-

ivism risk (at the time of release).

Given the purpose of the statute—to assist law

enforcement in preventing future sex offenses—it is unclear

why the legislature would want existing registrants to be

classified above their actual risk level based on outdated

information. See ORS 163A.045(1) (“The purpose of ORS

163A.005 to 163A.235 is to assist law enforcement agencies

in preventing future sex offenses.”). But even accepting the

board’s premise as correct, the fact remains that the legis-

lature enacted a statute that requires a present risk assess-

ment, Sohappy, 329 Or App at 46-47, and the board adopted a

rule requiring use of “the Static-99R actuarial instrument”

and the “attending rules and research” on the Static-99R

website to conduct that risk assessment and thus determine

whether someone poses the “highest” risk of reoffending

(Level 3), a “moderate” risk of reoffending (Level 2), or the

“lowest” risk of reoffending (Level 1). As held in Sohappy,

a present risk assessment conducted using the Static-99R

actuarial instrument and the attending rules and research

on the Static-99R website necessarily includes consideration

of sex-offense-free time in the community.

26 Watson v. Board of Parole

We note that our holding is narrow. This is not

a case where a registrant was classified as Level 3 based

on a correct application of the Static-99R methodology,

OAR 255-085-0020(1), or was classified as Level 3 auto-

matically based on a legislative policy choice, Or Laws

2013, ch 708, § 7(2)(b)(A), (B), and now seeks reclassifica-

tion or relief from registration, such that the statutory

limitations on reclassification and relief from registration

are at issue. See 329 Or App at 41. This is a case about

a risk assessment conducted under OAR 255-085-0020(1),

specifically the version of OAR 255-085-0020(1) in effect on

January 10, 2020. The only question before us is whether

the board plausibly interpreted that rule as allowing it

to disregard sex-offense-free time when conducting a risk

assessment using the Static-99R actuarial instrument and

attending rules and research on the Static-99R website. We

conclude that the board’s interpretation of its rule is implau-

sible, for the reasons stated in Sohappy and herein.

Having addressed the arguments that the board did

not make in Sohappy but makes in this case, we reaffirm

our holdings in Sohappy and conclude that the error in this

case qualifies as plain. We exercise our discretion to correct

the plain error, for largely the same reasons discussed in

the administrative-exhaustion section. See 329 Or App at

35-36; Ailes v. Portland Meadows, Inc., 312 Or 376, 382 n 6,

823 P2d 956 (1991) (providing a wide-ranging and nonexclu-

sive list of considerations that may be relevant in deciding

whether to exercise discretion to correct a plain error). The

critical role that accurate risk classification plays in meet-

ing the statutory goal of having a sex-offender registry that

assists law enforcement in preventing future sex offenses,

ORS 163A.045(1), is a particularly significant consideration.

IV. CONCLUSION

In sum, we reject petitioner’s arguments regarding

the board’s scoring of the “stranger victim” and “intimate

partner” items on the Static-99R assessment. However, con-

sistent with our holding in Sohappy, 329 Or App at 30, we

agree with petitioner that the board misinterpreted OAR

255-085-0020(1) (Jan 10, 2020) as allowing it to disregard

the Static-99R rules and research regarding sex-offense-free

Cite as 329 Or App 13 (2023) 27

time in the community as relevant to sexual recidivism risk.

We therefore reverse and remand.

In doing so, we note that, unlike the petitioner in

Sohappy, petitioner in this case received a lower score on

Item 1 of the Static-99R due to the board’s use of its “Age

Chart,” so, if the board applies the same rule again,7 it will

need to rescore petitioner on Item 1. Further, unlike the

petitioner in Sohappy, petitioner in this case has committed

nonsexual offenses since release on his index sex offense,

which the board may consider as relevant to his risk of sex-

ual recidivism in a manner consistent with the Static-99R

methodology. See Sohappy, 329 Or App at 44 & n 9 (discuss-

ing the Static- 99R’s approach to nonsexual offenses com-

mitted after the index sex offense).

Reversed and remanded.

7

Neither party has taken a position on which version of OAR 255-085-0020

should apply on remand. We express no opinion on that issue. We simply note

factual differences between this case and Sohappy that would be relevant under

the version of OAR 255-085-0020 addressed in this opinion.