Newcomb v. Board of Parole ( 2024 )

660 July 3, 2024 No. 477
This is a nonprecedential memorandum opinion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
SHAWN M. NEWCOMB,
Petitioner,
v.
BOARD OF PAROLE AND
POST-PRISON SUPERVISION,
Respondent.
Board of Parole and Post-Prison Supervision
A179503
Submitted May 14, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Matthew Blythe, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appel-
lant. Shawn Newcomb filed the supplemental brief pro se.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jon Zunkel-deCoursey, Assistant
Attorney General, filed the brief for respondent.
Before Tookey, Presiding Judge, Egan, Judge, and Kamins,
Judge.
KAMINS, J.
Affirmed.
Nonprecedential Memo Op: 333 Or App 660 (2024) 661
KAMINS, J.
Petitioner petitions for judicial review of a final
order of the Board of Parole and Post-Prison Supervision
declining to modify his parole status. We affirm.
Petitioner was released on parole in 2003 but his
parole was revoked later that year for violating the condi-
tions of his parole. In 2004, the board denied re-release,
resulting in a true life sentence. In 2021, petitioner requested
to reopen his case and reconsider that decision, a request
that the board deemed to be a request for a discretionary
personal interview to review petitioner’s progress. After
holding the hearing, the board denied petitioner’s request to
change the denial of rerelease.
In his first assignment of error, petitioner contends
that ORS 144.3951 required the board to adopt rules relating
the re-release of offenders, like petitioner, whose parole had
previously been revoked. However, before the board, peti-
tioner primarily argued that the board’s failure to identify
the standards governing the personal interview violated his
right to due process. He did not cite ORS 144.395, nor did
he argue that the board was required to engage in rulemak-
ing. Because he did not provide the board an opportunity to
address the argument he makes on appeal, he neither pre-
served it for review nor exhausted his administrative reme-
dies. ORAP 5.45(1); Tuckenberry v. Board of Parole, 365 Or
640, 646, 451 P3d 227 (2019). Accordingly, we reject the first
assignment of error.
Petitioner also raises three pro se supplemental
assignments of error. His first and third supplemental
assignments of error relate to previous board decisions that
precede the 2021 personal interview. Specifically, petitioner
challenges the board’s decision to revoke his parole in 2003
and the decision not to release him to parole in 1994. Those
assignments challenge decisions that are outside the scope
of the board decision under review, and we therefore reject
them. Petitioner’s second supplemental assignment of error
challenges multiple aspects of the discretionary interview
1
ORS 144.395 provides that the “board shall adopt rules consistent with the
criteria listed in ORS 144.780 to the rerelease of persons whose parole has been
revoked.”
662 Newcomb v. Board of Parole
proceeding, but those challenges do not appear to have been
raised to the board and are thus unpreserved and unex-
hausted. To the extent that petitioner raised any of the chal-
lenges in his second assignment of error before the board,
we can discern no error with the board’s decision.
Affirmed.