Opinion
A182240
08-21-2024
GAVIN LAVELL LEISEK, Petitioner, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.
Ethan Hazel fled the opening brief for petitioner. Justin Rusk fled the reply brief for petitioner. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General and Timothy A. Sylwester, Assistant Attorney General, fled the brief for respondent.
This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).
Submitted July 10, 2024
Board of Parole and Post-Prison Supervision A182240
Ethan Hazel fled the opening brief for petitioner. Justin Rusk fled the reply brief for petitioner.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General and Timothy A. Sylwester, Assistant Attorney General, fled the brief for respondent.
Before Aoyagi, Presiding Judge, Joyce, Judge, and Balmer, Senior Judge.
PER CURIAM.
Petitioner seeks judicial review of a June 2023 order of the Board of Parole and Post-Prison Supervision. The board set petitioner's sex offender notification level (SONL) at Level 2 (Moderate), applying the current versions of OAR 255-085-0005 and OAR 255-085-0020. In three assignments of error, petitioner argues that the board erred in setting his SONL at Level 2, challenging the board's approach of assessing the risk of committing a new sex offense that petitioner presented in 2007, when he was released on the index offense, rather than the risk that he presented in 2023, when the board set his SONL.
We have recently decided a number of cases involving similar arguments, including cases decided under the current versions of OAR 255-085-0005 and OAR 255-085-0020. Most importantly, in Thomsen v. Board of Parole, 333 Or.App. 703, 715, ___ P.3d at ___ (2024), we held that the current rules are invalid because "the board's methodology for initial classification of an individual's SONL does not measure what the legislature has charged it with measuring under ORS 163A.100 (i.e., present risk), but instead measures 'the registrant's risk as it was at the time of their release from their index offense.'" Because the current rules fail to comply with the statutory directive, they "'exceed[] the statutory authority' of the board, within the meaning of ORS 183.400(4)(b)."Id.; see also Allen v. Board of Parole, ___ Or.App. ___, ___ P.3d ___ (2024) (applying Thomsen).
Thomsen is controlling. We therefore reverse and remand to the board. Given our disposition, we need not address petitioner's fourth assignment of error, in which he raises a constitutional challenge to a specific aspect of the board's approach.
Reversed and remanded.