Harless v. Board of Parole

No. 281 April 8, 2026 289

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

MARK TODD HARLESS,

Petitioner,

v.

BOARD OF PAROLE

AND POST-PRISON SUPERVISION,

Respondent.

Board of Parole and Post-Prison Supervision

A186229

Argued and submitted March 5, 2026.

Anna Sammons argued the cause and filed the briefs for

petitioner.

Philip Thoennes, Assistant Attorney General, argued the

cause for respondent. Also on the briefs were Dan Rayfield,

Attorney General, and Benjamin Gutman, Solicitor General.

Before Tookey, Presiding Judge, Kamins, Judge, and

Jacquot, Judge.

TOOKEY, P. J.

Vacated and remanded.

290 Harless v. Board of Parole

TOOKEY, P. J.

ORS 163A.100 requires the Board of Parole and

Post-Prison Supervision to “adopt by rule a sex offender risk

assessment methodology for use in classifying sex offend-

ers.” Petitioner seeks judicial review of a final order of the

board from December 2024 setting petitioner’s sex offender

notification level (SONL) at Level 3 based on his Static-99R

score of 8.1 Petitioner argued that the board erred in assess-

ing his risk of re-offense, and that, under 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 determine his present risk of re-offense, not his risk at

the time of his release from the index offense. Petitioner

requested that we set aside the final order and remand to

the board for a new assessment. The board conceded that,

when assessing petitioner’s risk of re-offense, it had not con-

sidered his offense-free time in the community. The board

argued that we should reverse the final order and remand

for further proceedings.

On the same day that the case was submitted on

the briefs, petitioner moved to file a supplemental brief,

which we granted, in which he argues that we should

vacate and remand the board’s order, rather than reverse

and remand, because Senate Bill (SB) 1122 (2025) amended

ORS 163A.100, which is the statute that requires the board

to adopt a risk assessment methodology for use in classify-

ing sex offenders. Petitioner argues about the effect of SB

1122 on his case, and he raises a due process argument. The

board responds that, if we reverse and remand, then the

board will assess petitioner’s risk of re-offense in light of the

amendments to ORS 163A.100, which became effective on

May 27, 2025, and petitioner can raise arguments about the

amendments and any due process concerns to the board in

the first instance. Alternatively, the board argues that, as a

1

“The Static-99R is an actuarial risk assessment instrument designed to

assess risk of sexual recidivism for adult males who have already been charged with

or convicted of at least one sex offence against a child or a non-consenting adult.”

Sohappy v. Board of Parole, 329 Or App 28, 41, 540 P3d 568 (2023) (internal quo-

tation marks omitted). Level 3 offenders are those who present the highest risk of

re-offending and require the widest range of notification. Id. at 30.

Cite as 348 Or App 289 (2026) 291

result of the amendments to ORS 163A.100, the board cor-

rectly and lawfully assessed petitioner’s risk of re-offense,

and that we should either affirm the board’s final order or

dismiss the petition as moot.

We decline to consider arguments about the effect

of SB 1122 on how the board assessed or should assess peti-

tioner’s SONL until the board has had an opportunity to

consider those arguments in the first instance, after which

petitioner will have the opportunity to seek judicial review

of the board’s new order. Because the board’s mootness argu-

ment is premised on the assumption that the amendments

to ORS 163A.100 show that the board correctly assessed

petitioner’s SONL, we decline to consider that argument as

well.

Petitioner argues that we should vacate, or vacate

and remand, while the board argues that we should reverse

and remand. We note that either vacating or reversing sets

aside—that is, invalidates—the board’s order and, if the

disposition includes remanding to the board, each requires

further action from the board.2 ORS 144.335(3) provides

that we may “affirm, reverse or remand” the board’s order

on the same basis as provided in ORS 183.482(8). If we find

“that the agency has erroneously interpreted a provision of

law and that a correct interpretation compels a particular

action,” then we are required to “[s]et aside or modify the

order,” ORS 183.482(8)(a)(A), or “[r]emand the case to the

agency for further action under a correct interpretation of

the provision of law,” ORS 183.482(8)(a)(B).

We have reversed and remanded when we have con-

cluded that the board applied administrative rules regard-

ing how to assess the registrant’s risk of re-offense that

2

See, e.g., State v. Cunningham, 345 Or App 546, 551, 582 P3d 1184 (2025)

(vacating and remanding for the trial court to reconsider whether to revoke proba-

tion after we determined that one of the bases for revocation was erroneous); Van

Gordon v. Ore. State Bd. of Dental Examiners, 63 Or App 561, 566, 666 P2d 276

(1983) (“A ‘reversal’ represents a complete defeat, in this court, of the agency’s posi-

tion,” but when “an agency order is ‘reversed and remanded,’ * * * there remains the

possibility that the agency’s proposed action may ultimately be justified,” or “some

further agency action must occur, although its outcome is uncertain.” (Emphasis in

original.)). When we vacate a judgment or order, it leaves open the possibility for

re-entry of the prior judgment or order, but it does not leave the prior judgment or

order in place. Cunningham, 345 Or App at 551.

292 Harless v. Board of Parole

were invalid because they did not comply with the previ-

ous version of ORS 163A.100, which required the board to

adopt rules that considered the present risk of re-offending.

See Thomsen, 333 Or App at 715-17 (reversing and remand-

ing); Allen, 334 Or App at 448 (same). By contrast, we have

tended to vacate and remand when the trial court or agency

failed to adequately explain its rationale, see, e.g., Moreau

v. Samalin, 295 Or App 534, 535, 435 P3d 794 (2019), when

required written findings were insufficient, see, e.g., State

v. D. J. P., 342 Or App 422, 425, 576 P3d 1043 (2025), or

when the trial court or agency is required to reconsider its

decision in light of new law but might ultimately reinstate

the same order or judgment after doing so, see, e.g., State

v. Stutte, 339 Or App 87, 99 n 7, 568 P3d 247 (2025) (vacat-

ing and remanding “to signify our recognition that, after

reconsidering the issue, the trial court could reinstate the

same judgment in the probation-revocation case”); Forbus v.

Board of Parole, 309 Or App 296, 310-11, 482 P3d 95 (2021)

(vacating and remanding where the board had determined

that it could not consider petitioner’s post-incarceration evi-

dence in setting his prison term but where a subsequent

case determined that it could); State v. Cruz-Aguirre, 179 Or

App 546, 547, 40 P3d 560 (2002) (vacating and remanding

a trial court’s order suppressing evidence for the trial court

to apply the correct analysis as established by the Supreme

Court after the trial court’s decision).

Here, the parties agree that the law has changed

because the legislature amended ORS 163A.100, and those

amendments became effective on May 27, 2025. Petitioner

argues about the effect of those amendments, including that

they violate his due process rights, but those are arguments

that the board can address in the first instance on remand.

Based on the change in the law, we vacate the board’s order

and remand for a new assessment of petitioner’s SONL.

Vacated and remanded.