The opinion
No. 60 January 31, 2024 507
This is a nonprecedential memorandum opinion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
Submitted April 26, 2023.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stephanie J. Hortsch, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
Ellen F. Rosenblum, Attorney General, and Benjamin
Gutman, Solicitor General, filed the brief for respondent.
Before Shorr, Presiding Judge, Mooney, Judge, and
Pagán, Judge.
SHORR, P. J.
Affirmed.
508 Haverly v. Board of Parole
SHORR, P. J.
Petitioner seeks judicial review of a June 23, 2021,
order of the Board of Parole and Post-Prison Supervision
that, pursuant to ORS 163A.100 and OAR 255-085-0020
(Nov 25, 2020), set his sex offender notification level (SONL)
at Level II (Moderate). Petitioner contends that the board
violated its own rule when it failed to account for sex-of-
fense-free time in the community in setting his SONL.
We recently held that, under a previous version of
OAR 255-085-0020, the board erred in failing to account for
sex-offense-free time in the community in setting an offend-
er’s risk level, given the attending rules and research accom-
panying the assessment methodology adopted by the board.
Sohappy v. Board of Parole, 329 Or App 28, 540 P3d 568
(2023). However, the version of the rule in effect at the time
of petitioner’s assessment was materially different from the
version at issue in Sohappy, and expressly prohibited sex-
offense-free time in the community from being considered.
OAR 255-085-0020(6) (Nov 25, 2020); see also Lewis-Taylor
v. Board of Parole, 329 Or App 53, 55, 540 P3d 34 (2023).
In Lewis-Taylor, we declined to address the mer-
its of the petitioner’s argument due to the parties’ failure
to address the specific language in effect at the time of
the board’s decision. Petitioner here failed to develop an
argument in his opening brief regarding subsection (6) of
OAR 255-085-0020. The state briefly advocated for the
validity of subsection (6) in the answering brief. Although
petitioner argues in his reply brief that the board’s inter-
pretation of subsection (6) conflicts with ORS 163A.100,
other portions of the rule, and the research attending the
Static-99 methodology, that argument was not raised in his
opening brief or adequately developed for us to undertake an
assessment of the validity of the rule. We therefore decline
to address it and do not reach the merits of the issue. State v.
Murga, 291 Or App 462, 468, 422 P3d 417 (2018) (“We have
long held that arguments raised for the first time in a reply
brief normally will not be considered.”).
Affirmed.