Haverly v. Board of Parole ( 2024 )

414 October 9, 2024 No. 716
This is a nonprecedential memorandum opinion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
AUBERY EDWARD HAVERLY,
Petitioner,
v.
BOARD OF PAROLE
AND POST-PRISON SUPERVISION,
Respondent.
Board of Parole and Post-Prison Supervision
A176473
On petitioner’s motion for relief from default and motion
for extension of time to file petition for reconsideration
and second petition for reconsideration filed July 25, 2024.
Opinion filed January 31, 2024. 330 Or App 507.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stephanie J. Hortsch, Deputy Public Defender,
Office of Public Defense Services, filed the motions and
petition.
Before Shorr, Presiding Judge, Mooney, Judge, and Pagán,
Judge.
SHORR, P. J.
Reconsideration allowed; former opinion and disposition
withdrawn; reversed and remanded.
Nonprecedential Memo Op: 335 Or App 414 (2024) 415
SHORR, P. J.
Petitioner petitions for reconsideration of our deci-
sion in Haverly v. Board of Parole, 330 Or App 507 (2024)
(nonprecedential memorandum opinion), in which we
affirmed the order of the Board of Parole and Post-Prison
Supervision that set petitioner’s sex offender notification
level (SONL) at Level 2 (Moderate). Petitioner filed a motion
for relief from default and extension of time to file a second
petition for reconsideration. We exercise our discretion to
grant the extension of time and permit the filing of the sec-
ond petition.1 For the reasons explained below, we allow the
petition, withdraw our former opinion and disposition, and
reverse and remand.
Petitioner petitions for reconsideration because
there has been a change in the case law since the original
decision was issued. ORAP 6.25(1)(d). In Thomsen v. Board of
Parole, 333 Or App 703, 333 P3d 703 (2024), we held invalid
OAR 255-085-0005 and OAR 255-085-0020, the board’s
rules directing that an offender’s SONL be assessed as of
the time of their release from the index offense, without con-
sidering time offense-free in the community. We concluded
that those rules were contrary to ORS 163A.100, which we
have interpreted as requiring classification to be based
on the risk of reoffending at the time of the assessment.
Thomsen, 333 Or App at 705. See also Sohappy v. Board of
Parole, 329 Or App 28, 46, 540 P3d 568 (2023) (discussing
in detail Oregon’s sex offender registry and studies show-
ing that sex-offense-free time in the community reduces the
risk for recidivism).
Petitioner was released from his index offense in
2005. In 2021, in his first SONL classification, he was classi-
fied at Level 2 (Moderate). The classification was conducted
under the rules that did not take into account his 16 years
in the community without committing another sex offense.
Petitioner asserts that if his offense-free time were to be
considered, he would be classified at Level 1, and would be
immediately eligible to petition for relief from reporting,
1
The state has not taken a position on the motions or the second petition for
reconsideration.
416 Haverly v. Board of Parole
pursuant to ORS 163A.125(1)(a) and (c).2 Because the frame-
work under which petitioner was initially classified has been
deemed invalid, and petitioner may be entitled to immediate
relief from reporting, we conclude that the interests of jus-
tice require reversal and remand for reclassification.
Reconsideration allowed; former opinion and dispo-
sition withdrawn; reversed and remanded.
2
Petitioner was reclassified from Level 2 to Level 1 in November 2021, pur-
suant to ORS 163A.125(2)(c). Under that separate decision, he would not be eligi-
ble to petition for relief from reporting until five years after the reclassification,
in 2026. ORS 163A.125(1)(c)(B).