Lewis-Taylor v. Bd. of Parole & Post-Prison Supervision

329 Or.App. 53

540 P.3d 34

Jermaine Keith LEWIS-TAYLOR, Petitioner,

v.BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.

A176795

Court of Appeals of Oregon.

Submitted January 24, 2023.

November 8, 2023

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 Erica L. Herb, Assistant Attorney General, filed the brief for respondent.

Before Aoyagi, Presiding Judge, and Joyce, Judge, and Hellman, Judge.

AOYAGI, P. J.

Petitioner seeks judicial review of an August 2021 order of the Board of Parole and Post-Prison Supervision that, pursuant to ORS 163A.100 and OAR 255-085-0020(2) (Nov. 25, 2020), set his sex offender notification level (SONL) at Level 3 (High). Like the petitioners in two other cases decided today, Sohappy v. Board of Parole , 329 Or App 28, ––– P3d –––– (2023), and Watson v. Board of Parole , 329 Or App 13, 540 P3d 20 (2023), petitioner contends that the board violated its own rule when it failed to account for sex-offense-free time in the community in setting his SONL. In both Sohappy and Watson , we reversed SONL orders based on the board's failure to comply with its own rule in that regard. Sohappy , 329 Or App at 30, ––– P.3d –––– ; Watson , 329 Or App at 14, 540 P.3d 20. This case is in a different procedural posture, however, which leads us to a different result. For the following reasons, we affirm.

The petitioner in Sohappy raised the issue of sex-offense-free time to the board, thus exhausting any administrative remedy. 329 Or App at 33-35, ––– P.3d ––––. The petitioner in Watson did not raise the issue to the board, but, relying on Tuckenberry v. Board of Parole , 365 Or. 640, 642, 451 P.3d 227 (2019), we concluded that relaxing or setting aside the exhaustion requirement was appropriate in that circumstance. Watson , 329 Or App at 19-21, 540 P.3d 20. On the merits, assuming without deciding that we were limited to plain-error review, we held that the error qualified as plain in light of Sohappy and exercised our discretion to correct it. Id. at 26, ––– P3d ––––.

Here, petitioner did not raise the issue to the board, and he asks us to relax or set aside the administrative-exhaustion requirement. The board responds that, even if we were to do so, petitioner would be limited to plain-error review under Stewart and has not established plain error. See Stewart v. Board of Parole , 312 Or App 32, 35, 492 P.3d 1283 (2021) ("Even if we were to conclude that the exhaustion 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."). Petitioner contends that Stewart was wrongly decided¹ and that, under Tuckenberry , once the administrative-exhaustion requirement is relaxed or set aside, the court should simply proceed to the merits, without the limitations of plain-error review. See Tuckenberry , 365 Or. at 642, 451 P.3d 227 (proceeding to regular review after relaxing the administrative exhaustion requirement); Forbus v. Board of Parole , 309 Or App 296, 301, 482 P.3d 95 (2021) (same). We need not revisit that issue today because, under either plain-error review or regular review, petitioner's arguments would be unavailing.

Neither party has addressed which version of OAR 255-085-0020 the board applied in setting petitioner's SONL. However, based on the timing of the board's order, the board must have applied the version that went into effect on November 25, 2020. That version of the rule is materially different from the version that went into effect on January 10, 2020—at issue in Watson , 329 Or App at 14, 540 P.3d 20 —and the version that went into effect on April 29, 2020—at issue in Sohappy , 329 Or App at 30-31 & n. 1, ––– P.3d ––––. In particular, the version of OAR 255-085-0020 that went into effect on November 25, 2020, contains a new subsection (6) that provides:

"Except for classifications done under OAR 255-085-0020(5), 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. For relief from registration or reclassification under ORS 163A.125, the Board shall consider the registrant's time sexual offense-free in the community after conviction in determining whether to grant a petition for relief from the registration obligation or reclassification."

OAR 255-085-0020(6) (Nov. 25, 2020).

If we were to relax or set aside the exhaustion requirement and consider petitioner's arguments on plain-error review, we would affirm because the error alleged here would not qualify as "plain." Given the differences between the versions of the rule at issue in Sohappy and Watson and the version of the rule at issue in this case, the legal point on which petitioner relies is not "obvious" or beyond reasonable dispute. See State v. Vanornum , 354 Or. 614, 629, 317 P.3d 889 (2013) (stating requirements for "plain" error, including that the legal point is obvious and not reasonably in dispute). We would also affirm on regular review, because neither petitioner nor the board has addressed in their briefing the specific language of the version of OAR 255-085-0020 that went into effect on November 25, 2020. We could not...