432 June 10, 2026 No. 519
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
DeLAINE JOHDON JONES,
Petitioner,
v.
BOARD OF PAROLE
AND POST-PRISON SUPERVISION,
Respondent.
Board of Parole and Post-Prison Supervision
A184843 (Control), A184844
Argued and submitted August 8, 2025.
Brittney Plesser argued the cause for petitioner. Also on
the briefs was Oregon Justice Resource Center.
Philip Thoennes, Assistant Attorney General, argued
the cause for respondent. On the brief were Dan Rayfield,
Attorney General, Benjamin Gutman, Solicitor General,
and Kirsten M. Naito, Assistant Attorney General.
Before Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
KAMINS, J.
Affirmed.
Cite as 350 Or App 432 (2026) 433
KAMINS, J.
Petitioner seeks judicial review of two final orders of
the Board of Parole and Post-Prison Supervision (the board), stemming from a dual juvenile hearing and parole consideration hearing. In one order (BAF 12), the board found that
petitioner had not met his burden of proof in demonstrating maturity and rehabilitation and deferred his ability to
petition for a subsequent juvenile hearing for 36 months. In the second order (BAF 13), the board found that petitioner
continued to remain a dangerous offender and deferred his
release for 36 months.1 Petitioner argues that (1) the board erred in holding a dual juvenile and parole consideration
hearing, (2) a rule the board adopted exceeded its authority, and (3) certain parts of the board’s decisions were not supported by substantial evidence and reasoning. We affirm
the board’s orders because it did not err in the ways petitioner contends. The board acted within its authority in
holding a dual juvenile and parole consideration hearing,
the rules the board adopted to facilitate its hearings were
within its authority, and the board’s orders were supported
by substantial evidence and reasoning.
In 1988, when petitioner was 17 years old, he pleaded
guilty to one count of attempted murder with a firearm and
two counts of first-degree robbery with a firearm. For each
count, he was found to be a dangerous offender pursuant to
ORS 161.725 and was sentenced to an indeterminate term
with a maximum length of 30 years, with each count to run
consecutively.
Because petitioner challenges the board’s decision
to hold his parole hearings concurrently, we describe the circumstances around the board’s decision with some detail.
In 2021, while he was still incarcerated, petitioner
received a commutation from Governor Kate Brown. That
commutation granted petitioner, and others similarly situated who had been convicted of crimes as juveniles, the
opportunity to seek release on parole through a juvenile
hearing provided for in a recently enacted statute, ORS
1
Petitioner requested judicial review of the orders separately; the cases have been consolidated for our review.
434 Jones v. Board of Parole
144.397.2 At that time, petitioner was already scheduled for a parole consideration hearing in June 2022, as part of his
dangerous offender sentence.
In 2022, petitioner, through counsel, requested that
his parole consideration hearing be postponed until summer
2023.
In January 2023, after litigation surrounding
Governor Brown’s commutation order concluded, petitioner
received a letter from the board asking him if he “wish[ed]
to accept the commutation and be scheduled for a juvenile
hearing instead of a parole consideration hearing and if [he] want[ed] a [b]oard-appointed attorney or not.”
In March and April, petitioner and the board
engaged in some correspondence. The board emailed petitioner’s attorney stating that it would be holding petitioner’s hearings concurrently:
“[T]he [b]oard’s position is that if he wants a juvenile hearing, he will have a parole consideration hearing as well, a
‘dual’ hearing. The commutation does not take away that
fact he was sentenced as a dangerous offender, FYI.”
Petitioner’s counsel responded to the board that
petitioner wished to move forward with his juvenile hearing
but did not ask to move forward with the parole consideration hearing. The board responded that it would schedule
petitioner for a “dual” hearing. The board further asserted
that its decision was final. The board also explained that
its position was that it was “legally required to hold both a juvenile maturity hearing and a parole consideration jointly, given [that petitioner] has a current parole consideration
date of April 26, 2024.”
Petitioner then filed an administrative review
request to challenge the board’s decision to hold a dual hearing. Petitioner argued that the board action was inconsistent
2
Since 2019, all persons serving a prison sentence who were convicted of an offense committed prior to turning 18 are eligible for release on parole or post-prison supervision after serving 15 years of imprisonment, regardless of any mandatory minimum sentences. ORS 144.397(1) - (2). After a person who was convicted as a juvenile has served 15 years, the board shall hold a juvenile hearing that provides the person “a meaningful opportunity to be released on parole.” ORS 144.397(3).
Cite as 350 Or App 432 (2026) 435
with its administrative rules, its statutory authority, and
the Oregon and United States constitutions. More specifically, petitioner contended that, by holding a dual hearing, “the [b]oard is denying [him] the benefit of his commutation by: (1) requiring he meet two distinct release standards, (2) denying him the benefit of the more robust juvenile rehabilitation hearing, and (3) denying him the opportunity to
release to post-prison supervision.”
On June 12, 2023, the board sent petitioner
Administrative Review Response 3 (ARR 3), in which it
denied petitioner’s review request as premature under OAR
255-080-0011, because the board “ha[d] not issued any final
[b]oard action.”3 The board, for the first time, clarified its position that petitioner would not be required to satisfy both applicable release standards at his dual hearing, but could
obtain release if he satisfied either (or both).
The board also explained that its justification for
holding a dual hearing was to reduce the administrative
inconvenience and expense of holding two related release
hearings so close in time to one another:
“The Board elected, in its discretion, to schedule both mandatory hearings concurrently because of the close proximity in time with your upcoming parole consideration date,
and to reduce the administrative inconvenience (including
potentially to witnesses and victims) and expense associated with conducting the two related release hearings separately but only several months apart. The Board’s decision to conduct those hearings concurrently did not create
a new type of hearing, or otherwise alter the applicable
evidentiary standards or release criteria for the separate
hearings; those remain independent.”
Petitioner informed the board again that he would only participate in his juvenile hearing.
On October 4, 2023, the board held petitioner’s dual
juvenile and parole consideration hearing. Prior to his
3
OAR 255-080-0011, in relevant part, provides:
“All administrative review requests will be screened by a Board member
or a Board designee who shall deny further review of the following:
“* * * * *
“(3) Board orders that are not final[.]”
436 Jones v. Board of Parole
hearing, petitioner made certain objections to evidence the
board would receive. Of note to this request for judicial
review, petitioner objected to his most recent psychological evaluation by Dr. Hamilton (Hamilton evaluation), which
diagnosed him with Antisocial Personality Disorder, as
hearsay and unreliable, and his prior psychological evaluations as unreliable, not current, or irrelevant. The board
admitted the psychological evaluations as exhibits over petitioner’s objections.
Petitioner also provided evidence to try to meet
his burden to demonstrate maturity and rehabilitation. See
Jacobs v. Board of Parole, 342 Or App 41, 55, 577 P3d 338,
rev den, 374 Or 523 (2025) (citing ORS 144.397(7)) (“[A]t a
juvenile hearing, the petitioner has the burden to demonstrate his maturity and rehabilitation.”). To that end, petitioner submitted a hearing memo that included a personal
statement of responsibility; application of the statutory
juvenile hearing factors listed in ORS 144.397(5)4 and relevant discretionary juvenile hearing factors listed in OAR
255-033-0030(5);5 and a detailed release plan. Additionally,
4
ORS 144.397(5) provides:
“During a hearing under this section, the board shall consider and give
substantial weight to the fact that a person under 18 years of age is incapable
of the same reasoning and impulse control as an adult and the diminished
culpability of minors as compared to that of adults. The board shall also
consider the following circumstances, if relevant to the specific person and
offense:
“(a) The age and immaturity of the person at the time of the offense.
“(b) Whether and to what extent an adult was involved in the offense.
“(c) The person’s family and community circumstances at the time of the
offense, including any history of abuse, trauma and involvement in the juvenile dependency system.
“(d) The person’s subsequent emotional growth and increased maturity
during the person’s imprisonment.
“(e) The person’s participation in rehabilitative and educational programs while in custody if such programs have been made available to the
person and use of self-study for self-improvement.
“(f) A mental health diagnosis.
“(g) Any other mitigating factors or circumstances presented by the
person.”
5
OAR 255-033-0030(5) provides:
“The board, when making a determination under ORS 144.397(7) as to
whether the person, based on the consideration of the age and immaturity of
the person at the time of the offense, and the person’s behavior thereafter, Cite as 350 Or App 432 (2026) 437
petitioner submitted an independent psychological evaluation by Dr. Wells (Wells evaluation). That evaluation, unlike the Hamilton evaluation, diagnosed petitioner with PostTraumatic Stress Disorder and Major Depressive Disorder,
in full remission.
At the hearing, petitioner called Dr. Wells to testify
about her evaluation. Dr. Wells testified about her education and experience, the type of evaluation she conducted,
and how she applied her adolescent development expertise
in evaluating petitioner. Petitioner testified and elaborated on his childhood experience, his crimes, and his life since he was sentenced. Petitioner, through counsel, reiterated his
objection to participating in the parole consideration hearing at the same time as the juvenile hearing.
Following the hearing, the board issued two orders
(BAF 12 and BAF 13). In BAF 12, the juvenile hearing
has demonstrated maturity and rehabilitation, may consider, among other
things:
“(a) the person’s involvement in correctional treatment, medical care,
educational, vocational, or other training in the institution which will substantially enhance the person’s capacity to lead a law-abiding life when
released;
“(b) the person’s institutional employment history;
“(c) the person’s institutional disciplinary conduct;
“(d) the adequacy of the person’s release plan including community support from family, friends, treatment providers, and others in the community;
type of residence, neighborhood, or community in which the person plans to
live;
“(e) the person’s ability to demonstrate remorse and understanding of
the impact the person’s crime had on the victims and the community;
“(f) the person’s attitude and evidence of behavioral change;
“(g) the extent the person takes personal responsibility for their actions;
“(h) any psychiatrist or psychologist’s assessment of the person’s current
risk of re-offending, risk of harm, and suitability for community supervision;
“(i) the person understands long-term consequences;
“(j) the person can delay impulses and identify alternative actions;
“(k) the degree of premeditation or deviancy involved in the commission of the crime and the ability to understand, address, and mitigate those
underlying risk factors;
“(l) the person, if paroled, would not be a threat to the safety of the victim, the victim’s family, or the community and would comply with release
conditions; and
“(m) any other relevant factors.”
438 Jones v. Board of Parole
order, the board found that petitioner did not meet his burden of proof to demonstrate maturity and rehabilitation
and deferred petitioner’s ability to petition for a subsequent juvenile hearing for three years. The board explained that it reached that decision based on a number of factors, including petitioner’s minimal engagement with services, his failure to engage consistently with mental health treatment, and his
misconduct while incarcerated. The board also discussed the
Hamilton evaluation and the Wells evaluation, considered
both of their diagnoses, and observed that both evaluations
noted petitioner’s lengthy history of disciplinary misconduct. In deferring petitioner’s ability to petition for a subsequent juvenile hearing for three years, the board explained that
it relied on similar factors, including the Hamilton evaluation, sporadic engagement in treatment programs, ongoing
behavioral misconduct, and mental health issues.
In BAF 13, the parole consideration order, the board
found that petitioner continued to remain dangerous and
deferred his next parole consideration hearing for three
years. This petition for judicial review followed.
We review the board’s order for legal error, Morrison
v. Board of Parole, 277 Or App 861, 863, 374 P3d 948,
rev den, 360 Or 465 (2016), and substantial evidence, ORS
144.335(1), (3); ORS 183.482(8), including substantial reason, Jenkins v. Board of Parole, 356 Or 186, 195, 335 P3d
828 (2014). “Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a
reasonable person to make that finding.” ORS 183.482(8)(c).
In reviewing for substantial evidence, we defer to the board’s reasonable inferences and do not reweigh the evidence.
Mendacino v. Board of Parole, 287 Or App 822, 834, 404
P3d 1048 (2017), rev den, 362 Or 508 (2018). Substantial reason, on the other hand, requires that the board “articulate a ‘rational connection between the facts and the legal conclusions it draws from them.’ ” Jenkins, 356 Or at 195 (quoting Ross v. Springfield School Dist. No. 19, 294 Or 357, 370, 657 P2d 188 (1982)).
First Assignment of Error. Petitioner first argues
that the board erred in holding a dual juvenile and parole
consideration hearing.
Cite as 350 Or App 432 (2026) 439
Before resolving petitioner’s argument, however,
we address the board’s contention that we lack jurisdiction
to review its decision because petitioner failed to file a petition for judicial review within the jurisdictional time limit. The board asserts that ARR 3—the order in which it told
petitioner it would be holding a dual hearing—represented
a final order and that “[n]othing prohibited petitioner from seeking review of that order before the board held the dual
hearing.” (Emphasis in original.) We disagree.
A person seeking review of a board order must file
a petition for judicial review “within 60 days after the date the board mails the order disposing of the person’s request
for administrative review.” ORS 144.335(4). Judicial review, however, is limited to final agency orders. ORS 144.335(1);
ORS 183.480(3); see also ORS 183.315(1) (exempting the
board from certain other portions of the APA). A “final order” means “final agency action expressed in writing,” but does
not include
“any tentative or preliminary agency declaration or statement that:
“(A) Precedes final agency action; or
“(B) Does not preclude further agency consideration of
the subject matter of the statement or declaration.”
ORS 183.310(6)(b). In determining whether an agency’s order
constitutes a final order, “the question is the order’s place in the process of which it is a part—whether it is a preliminary step in reaching some later decision or is, itself, the ultimate decision.” Grobovsky v. Board of Medical Examiners, 213 Or
App 136, 145, 159 P3d 1245 (2007).
Here, ARR 3, in which the board stated that it
intended to hold a dual hearing, was not a final order subject to judicial review, for several reasons. First, the board itself ruled that it had “not issued any final [b]oard action” and
denied the request for administrative review as premature.
That ruling indicates that its decision was merely preliminary. Second, nothing in the email conveying the board’s
intent to hold a dual hearing, or the denial of the request for administrative review, precluded the board from further consideration of that plan. Indeed, the board appeared to change 440 Jones v. Board of Parole
its mind as to the function of the dual hearing during its
many communications with petitioner—including by referencing that “[t]he commutation [did] not take away [the] fact [that petitioner] was sentenced as a dangerous offender”—
and petitioner continued to raise the issue with the board,
when he responded to the board with his “continued belief”
that he should not be subjected to a dual hearing. Thus, petitioner’s challenge is timely.
Turning to the merits of petitioner’s argument, petitioner raises four distinct arguments as to why that decision was erroneous. First, petitioner contends that holding
a dual hearing violated the terms of the Governor’s commutation by failing to give full effect to the terms of her commutation order, and by subjecting him to a more severe sentence. Second, petitioner argues that the decision violated
his procedural due process rights under the Fourteenth
Amendment to the United States Constitution because he
lacked sufficient notice of the hearing. Third, petitioner
argues that the board exceeded its authority by holding a
hearing that did not have a procedure based in statute or
rule. Fourth, petitioner argues that the board’s dual hearing decision violated his constitutional equal protection rights because, to his knowledge, the board did not subject other
similarly situated persons to dual hearings. We address
each argument in turn and, for the reasons explained below,
we conclude that the board did not err in holding a dual
hearing.
A. Governor’s Commutation
Petitioner first argues that the decision to hold a
dual hearing violated the Governor’s constitutional clemency power. Petitioner contends that, by affording him the
opportunity of release onto post-prison supervision through
a juvenile hearing, the governor’s commutation replaced
his right to release onto parole through the parole consideration hearing process. Alternatively, petitioner contends
that, even if the governor’s commutation did not replace that option, a dual hearing is inconsistent with the commutation
because it creates a sentence that is more severe than the
original sentence. Finally, petitioner contends that holding Cite as 350 Or App 432 (2026) 441
a dual hearing failed to give the governor’s commutation “its full effect” because the commutation did not mention dual
hearings.
Petitioner’s arguments are foreclosed by our decision in Jacobs, 342 Or App at 42. As we explained in Jacobs, the effect of the governor’s commutation was to provide
petitioner “ ‘with a new, less severe punishment: continued
imprisonment, but with the right to a hearing’ that [he]
would not already be entitled to,” id. at 54 (quoting Marteeny v. Brown, 321 Or App 250, 253, 517 P3d 343, rev den, 370 Or
303 (2022)), i.e., a juvenile hearing. The commutation did not replace other avenues of release, nor did it make petitioner’s sentence harsher. Prior to the commutation, petitioner
did not have the ability to petition for release with the new juvenile hearing procedure. After the commutation, petitioner’s sentence remained the same, but with the added benefit
of the ability to petition for release with a juvenile hearing (including with an attorney appointed at board expense). The decision to hold petitioner’s original hearing and his new
hearing on the same day, as a dual hearing, did not create a harsher sentence because ultimately petitioner still received an additional opportunity for release that he would not have received otherwise.
B. Procedural Due Process
Petitioner next argues that the decision to hold a dual
hearing violated his right to due process guaranteed by the
Fourteenth Amendment to the United States Constitution.
Petitioner contends that the board violated his due process
right to notice and the opportunity for a fair hearing by not clearly advising him about his prehearing decisions and the
hearing process that it intended to use.
“Procedural due process imposes constraints on
governmental decisions that deprive individuals of constitutionally protected liberty or property interests.” Alexander v. Board of Parole, 205 Or App 443, 451, 134 P3d 1055, rev den, 341 Or 449 (2006). Thus, in analyzing a due process claim,
we first look to “whether the state has deprived a person of a liberty or property interest within the meaning of the Due Process Clause,” and, if so, whether it provided that person 442 Jones v. Board of Parole
with sufficient process. Stogsdill v. Board of Parole, 342 Or 332, 336, 154 P3d 91 (2007). In the context of discretionary parole release, the procedures required are “minimal.”
Swarthout v. Cooke, 562 US 216, 220, 131 S Ct 859, 178 L Ed
2d 732 (2011); see also Smith v. Board of Parole, 268 Or App 457, 469, 343 P3d 245, rev den, 357 Or 550 (2015) (relying
on Swarthout in concluding that the ability to subpoena witnesses “is not a requirement for a constitutionally adequate parole consideration hearing”).
Assuming without deciding that Oregon has created a protected liberty interest in petitioner’s early release through the juvenile and parole consideration hearing procedures, we conclude that the board provided petitioner with constitutionally sufficient notice of the issues before the
board and the expected hearing procedures. The board told
petitioner, approximately three-and-a-half months before the hearing, that it would be holding his hearings concurrently, and that petitioner could achieve release if he satisfied either (or both) legal standards for the respective hearings. Those legal standards, and the factors that the board considers
in determining whether the standards are met, are listed
in statutes and administrative rules. Petitioner was able to voice objections, file a hearing memo, and present witness
testimony at his hearing. Finally, the board provided its
reasoning in written orders following the hearing, to allow
petitioner to request administrative and judicial review.
That is constitutionally sufficient due process. Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 US 1, 16, 99
S Ct 2100, 60 L Ed 2d 668 (1979) (a parole process that “affords an opportunity to be heard, and when parole is denied it
informs the inmate in what respects he falls short of qualifying for parole * * * affords the process that is due under these circumstances. The Constitution does not require more.”);
Rivas v. Board of Parole, 272 Or App 248, 252-53, 356 P3d
83 (2015) (observing that the liberty interest in early release under then-existing Oregon law is not more significant that
the liberty interests discussed in Greenholtz).
C. Board’s Authority to Hold Concurrent Hearings
Petitioner also argues that the board lacked authority to hold his juvenile and parole consideration hearings
Cite as 350 Or App 432 (2026) 443
concurrently. Petitioner points to the statutes and rules governing juvenile hearings and parole consideration hearings
and notes that they do not explicitly authorize hearings to be held on the same day or at the same time.
“Administrative agencies like the board are creatures of statute and can only act with the power and authority as has been conferred upon it by its organic statute.”
Jacobs, 342 Or App at 47 (internal quotation marks omitted). “This power includes that expressly conferred by statute as
well as such implied power as is necessary to carry out the
power expressly granted.” Ochoco Const. v. DLCD, 295 Or
422, 426, 667 P2d 499 (1983). The question before us, then,
is whether the legislature, either expressly or by necessary implication, granted the board the power to hold multiple
hearings concurrently.
The legislature has not expressly granted the
board authority to hold different hearings concurrently. The remaining question is whether that power is authorized by
implication. To answer that question, we examine the statutes and rules that govern the different types of hearings.
Under the first statutory scheme, the board is
required by statute to set a date for a parole consideration hearing for any person sentenced as a dangerous offender
within six months after commitment to the custody of the
Department of Corrections (DOC). ORS 144.228(1)(a). The
parole consideration hearing date must be the date that
the person would otherwise be eligible for parole under the
board’s rules. Id. At the parole consideration hearing, if the board finds the person to be no longer dangerous or finds
that the person remains dangerous but can be adequately
controlled with supervision and mental health treatment,
and that those resources are available, the board must give
the person a release date in accordance with its rules. ORS
144.228(1)(b)(A). If the board is unable to make such findings, it must periodically conduct a review hearing no less
than two years, and no more than 10 years, from the date
of the previous review, until the board is able to make such findings. Id. The board determines the date of the review
hearing in accordance with rules adopted by the board. ORS
144.228(1)(b)(C). Rules adopted by the board to determine the 444 Jones v. Board of Parole
date of the review hearing “must be based on the foundation
principles of criminal law described in section 15, Article I of the Oregon Constitution.” Id.
Under the second statutory scheme, the board is also
required by statute to hold a juvenile hearing for any person who has served 15 years of imprisonment, and who was convicted of an offense committed when they were under 18 years old. ORS 144.397(1)(a); ORS 144.397(3). That hearing must
provide a person “a meaningful opportunity to be released on parole.” ORS 144.397(3). During that hearing, the board “shall consider and give substantial weight to the fact that a person under 18 years of age is incapable of the same reasoning and impulse control as an adult and the diminished culpability of minors as compared to that of adults.” ORS 144.397(5).
Both statutory schemes necessarily imply that the
board has discretion in choosing the date and time of the
respective hearings. See ORS 144.228(1)(a) (“The parole consideration hearing date shall be the time the prisoner would otherwise be eligible for parole under the board’s rules.”); ORS 144.228(1)(b)(C) (“The board shall determine the date
of the review hearing in accordance with rules adopted by
the board.”); ORS 144.397(13) (“The board may adopt rules
to carry out the provisions of this section.”). Given that the board has been granted broad authority to hold hearings,
determine the hearing dates, and adopt rules governing the
hearings, it follows that the board has the implicit authorization to hold two hearings concurrently, as it did here.
D. Equal Protection
Petitioner next contends that the board violated his
state and federal constitutional rights to equal protection by holding a dual hearing. Petitioner asserts that, to the best of his knowledge, at least eight other people who received
a juvenile hearing through Governor Brown’s commutation
are eligible for another type of parole hearing, but none of them had a dual hearing. The board counters that it was
justified in holding a dual hearing here in order to economize its resources and reduce the number of hearings the victims
need to attend.
Cite as 350 Or App 432 (2026) 445
The Equal Protection Clause of the Fourteenth
Amendment commands that no state shall “deny to any person within its jurisdiction the equal protection of the laws,” “which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 US 432, 439, 105 S Ct 3249, 87
L Ed 2d 313 (1985). To state a successful equal protection
claim as a “class of one,” petitioner would need to show that he “has been intentionally treated differently from others
similarly situated and that there is no rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 US 562, 564-65, 120 S Ct 1073, 145 L Ed 2d 1060 (2000).
Similar to the federal equal protection provision,
Article I, section 20, of the Oregon Constitution prohibits
laws “granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally
belong to all citizens.” A claim under Article I, section 20, may be brought by an individual “who demands equality
of treatment with other individuals.” State v. Davis, 237
Or App 351, 358, 239 P3d 1002 (2010), aff’d by an equally
divided court, 353 Or 166, 295 P3d 617 (2013). “To bring an
individual-based claim under Article I, section 20, a defendant must initially show that the government in fact denied
defendant individually an equal privilege with other citizens of the state similarly situated.” State v. Goacher, 303 Or App 783, 790, 466 P3d 1047 (2020) (internal quotation marks
omitted). “An agency or official’s decision will comply with Article I, section 20, as long as no discriminatory practice or illegitimate motive is shown and the use of discretion has a defensible explanation in the individual case.” Id. (internal quotation marks omitted). “An executive official’s decision will be defensible when there is a rational explanation for the differential treatment that is reasonably related to the official’s task or to the person’s individual situation.” Id. (internal quotation marks omitted).
Petitioner’s sole argument that he has been treated
differently is that, to the best of his appellate attorney’s knowledge, petitioner is the only person to have been eligible for a juvenile hearing who was subjected to a dual
hearing. Absent more concrete evidence—for example, the
446 Jones v. Board of Parole
closeness in time of the other petitioners’ scheduled hearings, the resources required, or needs of any potential victims in the other petitioners’ hearings—that bare statement
is insufficient to demonstrate differential treatment that has no rational basis or explanation. Petitioner has not pointed to evidence in the record that would allow us, on judicial
review, to find legal error in the board’s orders on the basis of an equal protection violation.
Second Assignment of Error. Petitioner next asserts
that the board erred when it found that he had not demonstrated maturity and rehabilitation for the purposes of his
juvenile hearing. Petitioner provides several arguments as to why the board erred. First, petitioner argues that the board exceeded its authority under ORS 144.397(13), a statute that permits it to adopt rules regarding juvenile hearings, when
it adopted and relied on substantive factors enumerated in
OAR 255-033-0030(5), thereby denying him a meaningful
opportunity to be released. Second, petitioner argues that
the board violated ORS 144.397(5) when it failed to give
substantial weight to petitioner’s childhood circumstances
and immaturity at the time of the crime. Third, petitioner
asserts that the board’s determination that he had not met
his burden to demonstrate maturity and rehabilitation is
not supported by substantial evidence or substantial reason. For the reasons explained below, we conclude that the board
did not err; its finding that petitioner had not demonstrated maturity and rehabilitation was supported by substantial
evidence and reason.
A. OAR 255-033-0030(5)
First, petitioner argues that the board exceeded its
authority under ORS 144.397(13), a statute that permits it
to adopt rules regarding juvenile hearings, when it adopted
and relied on substantive factors enumerated in OAR 255-033-0030(5) in denying release. Assuming that petitioner
met preservation and exhaustion requirements, his argument fails on the merits, as it is foreclosed by our decision in Jacobs, in which we concluded that the rule at issue was
“within the range of discretion granted to the agency.” 342 Or App at 48 (“Nothing in that statutory scheme suggests that
the legislature intended to authorize the board to adopt only Cite as 350 Or App 432 (2026) 447
procedural rules for making its statutorily mandated maturity and rehabilitation determination.”).6 Petitioner has not persuaded us that Jacobs was wrongly decided.
B. Childhood Circumstances
At a juvenile hearing, the board is required to “consider and give substantial weight to the fact that a person
under 18 years of age is incapable of the same reasoning and impulse control as an adult and the diminished culpability
of minors as compared to that of adults.” ORS 144.397(5).
Petitioner argues that the board violated its statutory
authority by placing too much weight on other statutory and
non-statutory factors, despite petitioner providing significant information to the board about his youth, maturity, and relevant circumstances at the time of his crime.
We have reviewed the record and conclude that the
board did not violate its statutory mandate to consider and
give substantial weight to petitioner’s diminished culpability as a youth. In its order, the board acknowledged “the
trauma [petitioner] experienced as a child and teenager” and “considered extensive information regarding [petitioner’s]
childhood in both [his] packet and testimony at the hearing.” The board did not base its decision on any culpability of petitioner for crimes committed as a youth; rather, the
board based its decision on evidence of petitioner’s behavior once he reached adulthood.
C. Substantial Evidence and Reason
Petitioner next asserts that the board’s ultimate
conclusion—that he failed to establish, by a preponderance
of the evidence, maturity and rehabilitation—is not supported by substantial evidence or reasoning.
When evaluating whether substantial evidence supports an agency’s finding, we ask whether “the record, viewed as a whole, would permit a reasonable person to make that
6
We also emphasized in Jacobs that “in applying its rules, the board may not consider the age of the person as an aggravating factor.” 342 Or App at 48 (citing ORS 144.397(6)). We do not understand petitioner to be advancing an argument that, in the board’s application of the OAR 255-033-0030(5) factors, it impermissibly considered his age as an aggravating factor. Rather, petitioner argues that the factors on the whole were outside of the agency’s granted authority. 448 Jones v. Board of Parole
finding.” ORS 183.482(8)(c). “We consider both the evidence
that supports and detracts from the board’s findings but defer to the board’s reasonable inferences without reweighing the
evidence in the record ourselves.” Mendacino, 287 Or App at
834.
Given that standard, we conclude that the board could
reasonably find that petitioner failed to demonstrate maturity and rehabilitation based on the evidence that it relied on and its reasonable inferences. That evidence included petitioner’s DOC records, which indicated intermittent participation in programming, chronic misconduct (including several assaults on other adults in custody), significant time in disciplinary segregation or the intensive management unit,
and minimal engagement with services over the years. It also included petitioner’s mental health evaluations, which showed that he struggled with depression and anxiety throughout his incarceration, but failed to attend appointments, took prescribed medications sporadically, and was caught diverting
medications. The evidence further included petitioner’s lack of engagement with sobriety services and petitioner’s denial of a substance use problem despite ongoing marijuana use,
including a positive urinalysis for marijuana approximately
three months before his hearing. Most of petitioner’s arguments to the contrary require us to reweigh the evidence in
the record, which we are unable to do.
Petitioner also challenges the board’s admission
of the Hamilton evaluation, contending that “the board’s
admission of and heavy reliance on Dr. Hamilton’s report
is not supported by substantial evidence or reason[ ].”
Petitioner argues, in the main, that the Hamilton evaluation is unreliable because it suffers from confirmation bias and cultural bias; does not provide adequate reasoning for
its diagnosis; fails to give weight to petitioner’s childhood trauma and other relevant factors; relies on outdated and
contested information; and is hearsay. Petitioner also contends that the board did not establish Hamilton’s expertise, did not certify the report as required by its rules, and did not provide him with an opportunity to cross-examine Hamilton.
To the extent that petitioner argues that the board relied
too heavily on the Hamilton evaluation, we reject petitioner’s Cite as 350 Or App 432 (2026) 449
argument, as it goes to the weight of the evidence and not its admissibility. However, to the extent that petitioner argues that Dr. Hamilton’s report should have been excluded in its
entirety as unreliable, we reject that argument as well, for the following reasons.
At a juvenile hearing, “[e]vidence of a type that reasonably prudent persons would commonly rely upon in the
conduct of their serious affairs shall be admissible.” OAR
255-030-0032; see also OAR 255-033-0040(1) (juvenile hearings governed by OAR 255-030-0032).7 The board “may
exclude evidence” if it is:
“(a) Unduly repetitious;
“(b) Not of a type commonly relied upon by reasonably
prudent persons in the conduct of their serious affairs;
“(c) Provided by a person, other than a justice system
official, without first hand knowledge of the circumstances
of the crime that is the subject of the proceeding before the
Board;
“(d) Provided by a person, other than a justice system
official, without first hand knowledge of the character of
the inmate;
“(e) Addressing only guilt or innocence; or
“(f) Irrelevant or immaterial to the decision(s) to be
made at that particular hearing.”
OAR 255-030-0032(4). The board’s order must be supported
by “[r]eliable, probative, and substantial evidence.” OAR
255-030-0032(3).
In short, the board, by rule, has permissive authority to exclude evidence. However, there is nothing in the
board’s rule that would require it to exclude a psychological report that is deficient in the ways petitioner contends the Hamilton evaluation is deficient.
Third and Fourth Assignments of Error. In his third
and fourth assignments of error, petitioner contends that
7
It does not appear that the board has adopted similar rules for the admissibility of evidence in parole consideration hearings. However, we note that, at a parole consideration hearing, the board may review “[t]he examining psychologist or psychiatrist’s written report.” OAR 255-036-0005(6)(a). 450 Jones v. Board of Parole
the board’s decisions to defer his next parole consideration hearing for three years and ability to petition for a juvenile hearing for three years were not supported by substantial
evidence or reason. We have reviewed the record and conclude that the board did not err. The evidence that the board relied on included the Hamilton evaluation, which contained
information on petitioner’s “significant maladaptive personality traits,” petitioner’s comments that he continued to view violence as an appropriate response to some situations, petitioner’s conduct during his hearing, petitioner’s limited engagement in treatment programs, petitioner’s continued
substance use, petitioner’s long history of disciplinary infractions, petitioner’s high risk for future violence, and petitioner’s refusal to participate in the parole consideration hearing. The board explained its reasoning by connecting the
evidence it relied on to the relevant factors in its decision. Thus, the board did not err.
In conclusion, we affirm the board’s orders because
it did not err in the ways petitioner contends. The board
acted within its authority in holding a dual juvenile and
parole consideration hearing, the rules the board adopted
to facilitate its hearings were within its authority, and the board’s orders were supported by substantial evidence and
reasoning.
Affirmed.