The opinion
405
Argued and submitted July 20, 2021, reversed and remanded for
reconsideration March 16, 2022
JEROME DARRELL AKLES,
Petitioner,
v.
BOARD OF PAROLE AND
POST-PRISON SUPERVISION,
Respondent.
Board of Parole and Post-Prison Supervision
A173548
508 P3d 590
Stacy M. Du Clos, Deputy Public Defender, argued the
cause for petitioner. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Jeff J. Payne, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Shorr, Presiding Judge, and Lagesen, Chief Judge,
and DeVore, Senior Judge.*
PER CURIAM
Reversed and remanded for reconsideration.
______________
* Shorr, P. J., vice Sercombe, S. J.; Lagesen, C. J., vice DeHoog, J. pro tempore.
406 Akles v. Board of Parole
PER CURIAM
Petitioner has petitioned for judicial review of a final
order of the Board of Parole and Post-Prison Supervision.
In that order, the board found that petitioner has a present
severe emotional disturbance such as to constitute a dan-
ger to the health or safety of the community (PSED) and
deferred his release date for two years under ORS 144.125.
Relying on our decisions in Dam v. Board of Parole, 258 Or
App 39, 309 P3d 161 (2013), and Nevins v. Board of Parole,
292 Or App 848, 426 P3d 253 (2018), petitioner argues that
the board erred by relying on a psychological evaluation
that, on its face, reflected that the evaluator based her deci-
sion on material information that was mistaken. On review
for legal error and substantial evidence, ORS 144.335(3);
ORS 183.482(8), we agree that the board erred and reverse
and remand for reconsideration.
In Dam, we held that the board erred when it based
its decision on a psychological evaluation that was based, in
part, on inaccurate information contained in a presentence
investigation report. 258 Or App at 42-43. We explained
that it was not permissible for the board to rely on an eval-
uation where it could not be determined to what extent the
evaluator’s reliance on mistaken information influenced
the evaluator’s ultimate conclusion. Id. at 43. We therefore
reversed and remanded to the board for reconsideration. Id.
We took the same approach in Nevins. There, we identified
the legal principle from Dam as follows: “It is not permissi-
ble for the board to rely on a psychological evaluation that is
based on an inaccurate understanding of an offender’s his-
tory if the inaccuracies may have influenced the evaluator’s
ultimate conclusions about the offender.” Nevins, 292 Or App
at 851. Applying that principle, we reversed and remanded
for reconsideration because the record demonstrated that
the evaluator had relied on inaccurate information about
the offender and because the record did not allow for the
inference that the inaccurate information played no role in
the evaluator’s ultimate conclusions.
This case is in the same posture as Dam and Nevins.
In finding that petitioner has a PSED, the board relied on
Cite as 318 Or App 405 (2022) 407
the evaluation by Dr. Guyton. But Guyton’s evaluation was
based on an error. Guyton incorrectly computed petitioner’s
score on the Psychopathy Checklist-Revised (PCL-R) and,
as a result, understood that tool to indicate that petitioner
had a “high level of psychopathy,” and relied on that tool in
her evaluation. As in Dam and Nevins, it is not reasonably
inferable that Guyton’s miscalculation of petitioner’s score
did not influence her ultimate conclusions. On the contrary,
her explanation of the scoring tends to suggest that, had she
computed the score correctly, she would not have reached
the conclusion that the PCL-R indicated that petitioner
had a high level of psychopathy, something that could have
affected her overall evaluation.
In arguing for a contrary result, the board argues
that it was permissible for it to rely on Guyton’s opinion
because the board was aware of the mistake and could use
the other information in the opinion to evaluate whether
petitioner has a PSED. The problem is that Guyton’s mis-
take calls into question the reliability of her ultimate con-
clusions, and it is speculative to infer that her evaluation
of petitioner would have been the same had she computed
petitioner’s score correctly. Guyton’s mistaken computation
made her think that petitioner’s “score is above the cutoff
of 30 for being considered psychopathic.” Correctly com-
puted, petitioner’s score, at 29, would have been below the
cutoff. Both sides have presented reasonable arguments
as to how an accurate understanding of petitioner’s score
on the PCL-R might bear on an evaluator’s opinion as to
whether petitioner has a PSED, including on how to view a
score close to, but below, the “cutoff” identified by Guyton.
As we explained in Nevins, “[u]nder those circumstances, it
is a question for a psychologist or similar expert, not for this
court or the board, as to how” the correct information about
petitioner’s score “bears on a psychological assessment” of
petitioner. Nevins, 292 Or App at 853 n 2.
In sum, under Nevins and Dam, it is not permissi-
ble for the board to rely on a psychological evaluation that
is based on inaccurate information unless the record allows
for the reasonable inference that the inaccuracy was imma-
terial to the evaluator’s ultimate conclusions. That is not the
408 Akles v. Board of Parole
case here. Accordingly, as we did in those cases, we reverse
and remand for reconsideration.
Reversed and remanded for reconsideration.