Opinion
A176473
10-09-2024
AUBERY EDWARD HAVERLY, Petitioner, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Stephanie J. Hortsch, Deputy Public Defender, Offce of Public Defense Services, fled the motions and petition.
This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).
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 fled July 25, 2024. Opinion fled January 31, 2024. 330 Or.App. 507.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Stephanie J. Hortsch, Deputy Public Defender, Offce of Public Defense Services, fled the motions and petition.
Before Shorr, Presiding Judge, Mooney, Judge, and Pagán, Judge.
SHORR, P. J.
Petitioner petitions for reconsideration of our decision in Haverly v. Board of Parole, 330 Or.App. 507 (2024) (nonprecedential memorandum opinion), in which we affirmed the order of the Board of Parole and Post-Prison Supervision that set petitioner's sex offender notification level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 second petition. For the reasons explained below, we allow the petition, withdraw our former opinion and disposition, and reverse and remand.
The state has not taken a position on the motions or the second petition for reconsideration.
Petitioner petitions for reconsideration because there has been a change in the case law since the original decision was issued. ORAP 6.25(lXd). In Thomsen v. Board of Parole, 333 Or.App. 703, 333 P.3d 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 considering 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 P.3d 568 (2023) (discussing in detail Oregon's sex offender registry and studies showing 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 classified 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, . pursuant to ORS 163A.125(1)(a) and (c). Because the framework 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 justice require reversal and remand for reclassification.
Petitioner was reclassified from Level 2 to Level 1 in November 2021, pursuant to ORS 163A.125(2)(c). Under that separate decision, he would not be eligible to petition for relief from reporting until five years after the reclassification, in 2026. ORS 163A.125(1)(c)(B).
Reconsideration allowed; former opinion and disposition withdrawn; reversed and remanded.