The opinion
630 December 4, 2024 No. 882
This is a nonprecedential memorandum opinion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
On petitioner’s petition for reconsideration filed
October 15, 2024. Opinion filed February 7, 2024. 330
Or App 620 (2024).
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Marc Brown, Deputy Public Defender, Oregon
Public Defense Commission, for petition.
Before Ortega, Presiding Judge, Hellman, Judge, and
Landau, Senior Judge.
HELLMAN, J.
Reconsideration allowed; former opinion and disposition
withdrawn; reversed and remanded.
Nonprecedential Memo Op: 336 Or App 630 (2024) 631
HELLMAN, J.
Petitioner petitions for reconsideration of our deci-
sion in Culbertson v. Board of Parole, 330 Or App 620 (2024)
(nonprecedential memorandum opinion), rev den, 372 Or 763
(2024), in which we affirmed the order of the Board of Parole
and Post-Prison Supervision (the board) that set petitioner’s
sex offender notification level (SONL) at Level III, the high-
est level. After we denied petitioner’s first petition for recon-
sideration and the Supreme Court denied review, petitioner
filed a motion for relief from default and extension of time
to file a second petition for reconsideration. We granted peti-
tioner’s motion. For the reasons explained below, we allow
the petition, withdraw our former opinion and disposition,
and reverse and remand.
Petitioner petitions for reconsideration under ORAP
6.25(1)(d), which provides that a party may base a petition for
reconsideration on “[a] claim that there has been a change
in the statutes or case law since the decision of the Court of
Appeals.” In Thomsen v. Board of Parole, 333 Or App 703,
704, 554 P3d 308 (2024), we considered OAR 255-085-0005
and OAR 255-085-0020, which directed agencies to assess
an offender’s SONL “at the time of their release from their
index offense” without considering time offense-free in the
community. We concluded that those rules were invalid
because “the board’s methodology for initial classification of
an individual’s SONL does not measure what the legisla-
ture 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[.]” Id. at 715 (internal quotation marks omitted); see
also Sohappy v. Board of Parole, 329 Or App 28, 36-45, 540
P3d 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 1999 and the board conducted petitioner’s first SONL
classification in 2017. The board conducted that classifica-
tion under rules that did not take into account his time in
the community without committing another sex offense.
Because the framework under which petitioner was initially
632 Culbertson v. Board of Parole
classified has been deemed invalid, we conclude that the
interests of justice require reversal and remand for comple-
tion of a new assessment and classification.
Reconsideration allowed; former opinion and dispo-
sition withdrawn; reversed and remanded.