Leisek v. Board of Parole

No. 587 August 21, 2024 495

This is a nonprecedential memorandum opinion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

GAVIN LAVELL LEISEK,

Petitioner,

v.

BOARD OF PAROLE

AND POST-PRISON SUPERVISION,

Respondent.

Board of Parole and Post-Prison Supervision

A182240

Submitted July 10, 2024.

Ethan Hazel filed the opening brief for petitioner. Justin

Rusk filed the reply brief for petitioner.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General and Timothy A. Sylwester, Assistant

Attorney General, filed the brief for respondent.

Before Aoyagi, Presiding Judge, Joyce, Judge, and Balmer,

Senior Judge.

PER CURIAM

Reversed and remanded.

496 Leisek v. Board of Parole

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 assign-

ments of error, petitioner argues that the board erred in set-

ting 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 involv-

ing 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, ___ P3d at ___ (2024), we held that the

current rules are invalid because “the board’s methodol-

ogy for initial classification of an individual’s SONL does

not measure what the legislature has charged it with mea-

suring 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, 334

Or App 447, ___ P3d ___ (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.