Jenkins v. Board of Parole

134 June 4, 2025 No. 506

This is a nonprecedential memorandum opinion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

MICHAEL W. JENKINS,

Petitioner,

v.

BOARD OF PAROLE AND POST-PRISON

SUPERVISION,

Respondent.

Board of Parole and Post-Prison Supervision

A182304

Submitted May 15, 2025.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and Stacy M. Du Clos, Deputy Public Defender,

Oregon Public Defense Commission, filed the briefs for peti-

tioner. Michael W. Jenkins filed the supplemental brief pro

se.

Dan Rayfield, Attorney General, Benjamin Gutman,

Solicitor General, and Jeff J. Payne, Assistant Attorney

General, filed the brief for respondent.

Before Tookey, Presiding Judge, Kamins, Judge, and

Jacquot, Judge.

KAMINS, J.

Affirmed.

Nonprecedential Memo Op: 341 Or App 134 (2025) 135

KAMINS, J.

Petitioner seeks judicial review of a final order of

the Board of Parole and Post-Prison Supervision (board)

that denied petitioner release under ORS 144.397 after

holding a juvenile hearing. Petitioner argues, in the main,

that the board erred by relying on a psychological evalua-

tion (2023 report) that petitioner contends was flawed. In

addition, petitioner claims that the board erred by setting

an exit interview hearing. We affirm.

In 1979 and 1980, when petitioner was 17 years old,

he was convicted of several crimes and sentenced to several

indeterminate consecutive 20-year sentences. At that time, a

presentence investigation report was prepared that included

a psychological investigation. That investigation noted that

petitioner lacked empathy for his victims and did not seem

willing to change. The report also diagnosed petitioner with

“[a]ntisocial personality [disorder].”

In 2021, petitioner’s sentence was commuted

by Governor Kate Brown. The Governor’s commutation

granted petitioner the opportunity to petition the board for

early release through a juvenile hearing in which he would

have the opportunity to demonstrate maturity and rehabili-

tation. See generally ORS 144.397 (explaining juvenile hear-

ing procedure). Petitioner’s hearing was scheduled for April

2023 and a new forensic mental health evaluation (2023

report) was prepared. That 2023 report reviewed petition-

er’s records, including seven psychological evaluations from

2000-2012, petitioner’s disciplinary records, and petitioner’s

presentence investigation reports. The report also adminis-

tered several evaluations to determine petitioner’s risk for

violence and psychopathy, in light of petitioner’s crimes of

conviction.

Prior to his juvenile hearing, petitioner requested

that the 2023 report be excluded for two reasons. First, peti-

tioner argued that the 2023 report relied on flawed evidence

and thus violated his due process right to a fair hearing.

Specifically, petitioner challenged the report’s reliance on

the 1979 presentence investigation report that diagnosed

petitioner with antisocial personality disorder when he

136 Jenkins v. Board of Parole

was 17 years old. Petitioner noted that the Diagnostic and

Statistical Manual of Mental Disorders (5th ed) (DSM-5) cur-

rently does not permit antisocial personality disorder diag-

noses for individuals under 18. Id. at 659.

Petitioner also argued the report should be excluded

because it treated age as an aggravating factor in violation

of the juvenile hearing statute. See ORS 144.397(6) (noting

that, at a juvenile hearing, “under no circumstances may the

board consider the age of the person an aggravating factor”).

In particular, petitioner noted that a psychopathy checklist

that the report utilized contained age-specific factors, like

“early behavioral problems” and “juvenile delinquency.”

The board voted to allow the report, noting that the

report’s authors “independently reached their own findings”

and did not rely on flawed information “to reach any conclu-

sion.” Petitioner was ultimately unsuccessful in his juvenile

hearing and the board deferred his ability to petition for a

subsequent juvenile hearing for three years. The board also

indicated that petitioner was eligible for an exit interview in

February 2028.

Petitioner requested administrative review of the

board’s decision. In his request, petitioner contested the

board’s admission of the 2023 report, but did not advance

any specific arguments as to why the report should have

been excluded. Petitioner also argued, in essence, that as

a result of the Governor’s commutation that granted him a

juvenile hearing, he no longer was subject to the exit inter-

view process, as the juvenile hearing superseded any other

previous sentence he had. The board denied petitioner relief

and this request for judicial review followed.

First and Second Assignment of Error. Petitioner

first challenges the board’s decision to admit the 2023

report. Petitioner argues that the 2023 report relies on an

inaccurate historical diagnosis and treats age as an aggra-

vating factor, and the board, in turn, violated both ORS

144.397 and petitioner’s due process rights by considering

the report. In response, the board argues that petitioner’s

challenge is unpreserved because it was not raised in his

Nonprecedential Memo Op: 341 Or App 134 (2025) 137

administrative review request, and, in any event, the report

did not rely on flawed evidence and is admissible.

We review the board’s order for substantial evi-

dence, ORS 144.335(1), (3); ORS 183.482(8), and 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). 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 conclu-

sions it draws from them.’ ” Jenkins, 356 Or at 195 (quoting

Springfield Education Assn. v. School Dist., 290 Or 217, 226-

28, 621 P2d 547 (1980)).

Assuming without deciding that petitioner’s

argument is preserved, we reject it on the merits. That

is because, contrary to petitioner’s belief, the 2023 report

did not rely on an inaccurate understanding of petitioner’s

diagnosis. Rather, the 2023 report evaluated, among other

things, a presentence investigation that contained a diagno-

sis that was, in fact, accurate for the time it was made. See

Diagnostic and Statistical Manual 43 (2nd ed 1968) (defin-

ing antisocial personality but not including limitation based

on age). Although petitioner is correct that, under modern

standards, persons under 18 cannot be diagnosed with anti-

social personality disorder, petitioner was repeatedly diag-

nosed with antisocial personality disorder after turning 18,

in seven subsequent psychological evaluations. In light of

that record, and to the extent that the 2023 report’s refer-

ence to the 1979 diagnosis as one of several of the report’s

sources could be construed as an inaccuracy, it is, at most,

“a minor flaw in the information on which the evaluator

relied,” Nevins v. Board of Parole, 292 Or App 848, 853, 426

P3d 253 (2018), and not one that requires reversal.

Finally, petitioner renews his argument that the 2023

report impermissibly treats age as an aggravating factor, in

violation of the juvenile hearing statutes. See ORS 144.397(6)

138 Jenkins v. Board of Parole

(“Under no circumstances may the board consider the age of

the person as an aggravating factor.”); OAR 255-033-0030(4)

(same). Petitioner argues that one of the evaluation tools, the

Psychopathy Checklist (PCL-R), assigned points to age-re-

lated factors of “juvenile delinquency” and “early behavioral

problems” which increased his overall score on the test. The

board, in turn, relied on the 2023 report—and petitioner’s

high score on the PCL-R—to deny petitioner release.

Although that presents a closer issue, we ultimately

agree with the board that the report (and the board, by rely-

ing on it), did not treat age as an aggravating factor. The

board is required to consider a “mental health diagnosis”

if it is “relevant to the specific person and offense.” ORS

144.397(5)(f).1 Mental health professionals may come to that

diagnosis, as they did here, by a thorough examination of

many factors, including some factors that may be age-re-

lated. It appears that the report simply recognizes that cer-

tain factors that appear in a person when they are young

are part of the constellation of factors that may comprise an

adult mental health diagnosis.2

Third Assignment of Error. Lastly, petitioner assigns

error to the board setting an exit interview hearing. Petitioner

argues that the exit-interview procedure no longer controls

his release date because, under the terms of his commuta-

tion, ORS 144.397(7)(b) now governs his release date.

We disagree. The Governor’s commutation granted

petitioner (and those similarly situated to him) an additional

avenue through which he can pursue release. See Marteeny

v. Brown, 321 Or App 250, 291, 517 P3d 343, rev den, 370

Or 303 (2022) (explaining effect of commutation). The com-

mutation cannot affect any other aspects of petitioner’s sen-

tence, including his previously scheduled exit interview.

Affirmed.

1

Although psychopathy is not itself a mental health diagnosis, as it is not

listed in the DSM-5, the 2023 report notes that it is a “constellation of traits and

behaviors * * * that results in social dysfunction,” and is “consistent with a per-

sonality disorder.” The report did diagnose petitioner with antisocial personality

disorder.

2

Our disposition obviates the need to address petitioner’s due process argu-

ment, as it relies on petitioner’s claim that board relied on the 2023 report.