The opinion
No. 568 June 25, 2025 453
This is a nonprecedential memorandum opinion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
KENNETH W. WALTERS,
Petitioner,
v.
BOARD OF PAROLE
AND POST-PRISON SUPERVISION,
Respondent.
Board of Parole and Post-Prison Supervision
A185081
Submitted May 9, 2025.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stephanie J. Hortsch, Deputy Public Defender,
Oregon Public Defense Commission, filed the brief for
petitioner.
Dan Rayfield, Attorney General, Benjamin Gutman,
Solicitor General, and Philip Thoennes, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Chief Judge, and Egan, Judge.
EGAN, J.
Reversed and remanded.
454 Walters v. Board of Parole
EGAN, J.
Petitioner seeks judicial review of a final order of
the Board of Parole and Post-Prison Supervision (board)
that set petitioner’s sex offender notification level at Level 3.
We reverse and remand the board’s final order.1
Petitioner acknowledges that he did not argue
below that the board erred in failing to consider the time he
has been in the community without sexually offending. The
state does not contest exhaustion or preservation. We agree
with petitioner that relaxing the exhaustion requirement is
appropriate under these circumstances. Watson v. Board of
Parole, 329 Or App 13, 19-20, 540 P3d 20 (2023).
The board concedes that it erred in assessing peti-
tioner’s risk of reoffending without considering his offense-
free time in the community. We agree with and accept the
concession. Under our decisions in Thomsen v. Board of
Parole, 333 Or App 703, 554 P3d 308, rev den, 373 Or 81
(2024), and Allen v. Board of Parole, 334 Or App 447, 557
P3d 178, rev den, 373 Or 121 (2024), the board was required
to assess petitioner’s risk of reoffense as of the time of the
assessment. The appropriate remedy is to reverse and
remand to the board for further proceedings. Thomsen, 333
Or App at 717.
Reversed and remanded.
1
As authorized by ORS 2.570(2)(b), this matter is determined by a two-judge
panel.