The opinion
620 February 7, 2024 No. 82
This is a nonprecedential memorandum opinion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
KARL C. CULBERTSON,
Petitioner,
v.
BOARD OF PAROLE AND POST-PRISON
SUPERVISION,
Respondent.
Board of Parole and Post-Prison Supervision
A174261
Argued and submitted October 21, 2022.
Marc D. Brown, Deputy Public Defender, argued the
cause for petitioner. Also on the briefs were Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, and Stephanie
J. Hortsch, Deputy Public Defender, Office of Public Defense
Services.
Christopher Page, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, and Hellman, Judge,
and Landau, Senior Judge.
HELLMAN, J.
Affirmed.
Nonprecedential Memo Op: 330 Or App 620 (2024) 621
HELLMAN, J.
Petitioner seeks judicial review of a May 2020 order
of the Board of Parole and Post-Prison Supervision (the
board). In that order, the board applied ORS 163A.100 and
OAR 255-085-0020 and set petitioner’s sex offender notifi-
cation level (SONL) at Level III, the highest level. In his
petition for judicial review, petitioner asserts three assign-
ments of error, contending that the board erred in setting
his SONL classification as Level III; in failing to factor in
the time that petitioner has been in the community with-
out committing a new sex offense in determining his final
SONL; and in using the “Oregon Board of Parole & Post-
Prison Supervision SONL - Age Chart” as a means of
addressing his sex-offense-free time in the community. For
the following reasons, we affirm.
When an administrative rule has materially
changed over time, resolution of a rule-based challenge
depends upon which version of the rule the board applies.
Such is the case with OAR 255-085-0020. Thus, the version
of OAR 255-085-0020 that the board applied, or should have
applied, is a critical issue in this case. See, e.g., Lewis-Taylor
v. Board of Parole, 329 Or App 53, 540 P3d 34 (2023) (apply-
ing November 25, 2020, version); Sohappy v. Board of Parole,
329 Or App 28, 540 P3d 568 (2023) (applying April 29, 2020,
version); Watson v. Board of Parole, 329 Or App 13, 540 P3d
20 (2023) (applying January 10, 2020, version).
We do not reach which version of OAR 255-085-
0020 applies in this case, however, because in petitioner’s
opening brief, we cannot discern which version he is apply-
ing, nor does he present an argument about which version
the board did or should have applied. ORAP 5.45(1) (“No
matter claimed as error will be considered on appeal unless
the claim of error was preserved in the lower court and is
assigned as error in the opening brief in accordance with
this rule * * *.” (Emphasis added.)). In petitioner’s opening
brief, to establish preservation, he quotes excerpts from his
written objections to the board’s order which appear to refer
to a version of OAR 255-085-0020 that predates the ver-
sion that took effect on November 25, 2020. Petitioner also
directly quotes the board’s June 2020 “Recommendation
622 Culbertson v. Board of Parole
of Final Sex Offender Notification Level Classification” in
which the board explicitly stated that it was applying a 2017
version of OAR 255-085-0020. Despite these references to
other versions, petitioner includes the version of the rule that
took effect on November 25, 2020, in his appendix. Further
complicating matters is that all of the 2017 versions of OAR
255-085-0020 were materially different from the November
2020 rule. See Lewis-Taylor, 329 Or App at 55 (explaining
that the November 25, 2020, version of OAR 255-085-0020
is materially different than prior versions because it con-
tains a new subsection (6)).
In its answering brief, the board disputes which
version of OAR 255-085-0020 applies in petitioner’s case.
Petitioner’s explicit argument that the version in place on
the date of his March 2, 2020, Static-99R evaluation controls
is first raised in his reply brief. We have established that
“[w]e generally do not consider arguments raised for the first
time in a reply brief,” and there is no reason for us to depart
from our standard practice in this case. State v. Bordeaux,
323 Or App 60, 72 n 5, 522 P3d 900 (2022), rev den, 371 Or
60 (2023) (citing State v. Murga, 291 Or App 462, 468, 422
P3d 417 (2018)); see also Ailes v. Portland Meadows, Inc., 312
Or 376, 380, 823 P2d 956 (1991) (explaining that where an
issue was not raised in the opening brief, the opposing party
“had no opportunity to submit a written response to [the]
plaintiff’s * * * argument and, thus, the Court of Appeals did
not have the benefit of such written response”). Therefore,
because petitioner did not present this critical issue in his
opening brief, we do not reach the merits of petitioner’s
arguments. Cf. Lewis-Taylor, 329 Or App at 56 (explaining
that we would affirm where parties’ arguments about the
version of OAR 255-085-0020 that applied in the petitioner’s
case were insufficiently developed).
Affirmed.