Engweiler v. Board of Parole

No. 804 September 10, 2025 343

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

CONRAD ROBERT ENGWEILER,

Petitioner,

v.

BOARD OF PAROLE AND POST-PRISON

SUPERVISION,

Respondent.

Board of Parole and Post-Prison Supervision

A178767

Argued and submitted May 8, 2024.

Thaddeus Betz argued the cause and filed the reply brief

for petitioner. Also on the opening brief was Oregon Justice

Resource Center.

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, Aoyagi, Judge, and Pagán,

Judge.*

SHORR, P. J.

Affirmed.

______________

* Aoyagi, Judge vice Mooney, Senior Judge.

344 Engweiler v. Board of Parole

SHORR, P. J.

Petitioner requests judicial review of the final

order of the Board of Parole and Post-Prison Supervision

(the board) denying his request for discharge from lifetime

parole. In five assignments of error, petitioner challenges

the process that the board engaged in and its application of

the law to his request. We conclude that none of petitioner’s

assignments of error warrant reversal of the board’s deci-

sion, and we therefore affirm.

FACTS AND PROCEDURAL HISTORY

Petitioner was convicted of committing aggravated

murder in 1990 when he was 15 years old. He was initially

sentenced to life in prison, with a mandatory 30-year min-

imum prison term. That sentence was eventually reversed

on appeal, due to the prohibition against mandatory mini-

mums for juvenile offenders under the age of 17 at the time

of their crime. On resentencing, he was sentenced to life in

prison. State ex rel Engweiler v. Felton, 350 Or 592, 597, 260

P3d 448 (2011).

In 2014, petitioner was released from prison to

“parole for life” with a minimum period of active supervi-

sion of 36 months. After three years of active supervision, he

was placed on “inactive status,” in 2017. In July 2021, peti-

tioner requested that the board discharge him from parole

entirely.

The board initially determined that petitioner

was not eligible for discharge, citing Davidson v. Board of

Parole, 139 Or App 289, 911 P2d 973, adh’d to as modified on

recons, 140 Or App 72, 914 P2d 14, rev den, 324 Or 18 (1996).

The board eventually reversed course and considered the

request. The board solicited information from petitioner’s

parole officer and the victim’s family and considered peti-

tioner’s written statements. On October 20, 2021, the board

issued Board Action Form (BAF) #14, stating that it was

“unable to find that discharge and release from supervision

is compatible with the welfare of society,” and denied dis-

charge. The board explained:

“Primarily, the Board reaches this decision based on the

victim’s family’s fear of [petitioner] and their desire to

Cite as 343 Or App 343 (2025) 345

have a no-contact order in place to protect their safety and

welfare. The facts of this case are gruesome and causes

ongoing trauma, fear, and pain to the family and friends

of [the victim]. The Board also considered the inactive

supervision status of [petitioner’s] supervision and the

minimal requirements of individuals who are on inactive

supervision. Despite the adverse decision against [petition-

er’s] request for discharge, the Board recognizes and com-

mends [petitioner] on his reform activities, compliance with

supervision, and his positive contributions since his release

from the custody of the Oregon Department of Corrections.

However, the Board finds the reasons to keep [petitioner] on

inactive supervision outweigh the reasons for discharge.”

Petitioner sought administrative review, and on May

25, 2022, the board issued Administrative Review Response

(ARR) #9, affirming the denial of discharge. The board first

rejected the procedural arguments that petitioner submit-

ted in response to BAF #14 regarding notice and process and

the standards that were applied to the decision. The board

stated that it applied former ORS 144.310 (1989), repealed by

Or Laws 1993, ch 680, § 7, and former OAR chapter 255, divi-

sion 90 (Nov 1, 1989), in reaching its decision, and rejected

petitioner’s argument that he was entitled to contested case

procedures under the Oregon Administrative Procedures

Act (APA). The board further explained its finding that dis-

charge from parole was not compatible with the welfare of

petitioner and of society, rejecting petitioner’s assertion that

the board had improperly relied on irrelevant facts and had

made an ad hoc or arbitrary decision:

“Petitioner’s terms of parole supervision included a

no-contact order of indefinite duration. The board finds that

the victim’s [family’s] interest in protection from harm and

fear are legitimate and reasonable, and ongoing. Petitioner

acknowledges that there is ‘ongoing harms’ and the board

recognizes petitioner’s efforts to mitigate those harms.

However, the board finds that providing a final release

from parole supervision—including inactive supervision—

is premature and incompatible with the welfare of peti-

tioner and of society. In so finding, the board rejects peti-

tioner’s suggestion that the term ‘welfare of society’ does

not include consideration of the desires of crime victims

and the family members of crime victims to be protected

346 Engweiler v. Board of Parole

from harm by an offender serving lifetime supervision for

aggravated murder.

“Petitioner also argues that the board’s decision is

‘ad hoc’ and ‘arbitrary.’ The board disagrees. The board has

considered petitioner’s individual circumstances, including

his age at the time he committed his crimes, and the specific

circumstances in which he committed his crimes, which

involved a brutal and prolonged assault, sexual assault,

rape, strangulation, and eventual murder of a 16-year-old

child. The circumstances of those crimes, petitioner’s moti-

vations to commit those crimes, and petitioner’s decisions

to continue committing those crimes despite several oppor-

tunities to do so, are all individualized considerations that

are personal and unique to petitioner. The board’s decision

to authorize parole for petitioner [was] made in light of peti-

tioner’s unique personal circumstances, and the board’s

decisions during petitioner’s parole supervision are simi-

larly individualized and personal to petitioner, petitioner’s

crimes, petitioner’s rehabilitation, and the interests and

welfare of society. The board commends petitioner for his

continued compliance with parole supervision, but under

the circumstances, has determined that granting a full

discharge from lifetime parole supervision is premature at

this time, and not compatible with the welfare of petitioner

or of society.”

Petitioner filed this request for judicial review of that final

order.

HISTORICAL CONTEXT AND APPLICABLE LAW

As has been extensively laid out in petitioner’s prior

litigation, petitioner committed his crimes in an era when

the Oregon criminal justice system was undergoing signif-

icant overhauls. See Engweiler v. Board of Parole, 343 Or

536, 538-41, 175 P3d 408 (2007). In proceedings such as

this, where the crime occurred many decades ago, the board

and the courts apply the law that was in effect at the time

the petitioner committed the crime. Id. at 543 n 7.

The parties agree that it was appropriate for the

board to consider petitioner’s request for final discharge

from parole, pursuant to former ORS 144.310 (1989), which

stated:

Cite as 343 Or App 343 (2025) 347

“When a paroled prisoner has performed the obliga-

tions of parole for such time as satisfies the State Board

of Parole and Post-Prison Supervision that the prisoner’s

final release is not incompatible with the prisoner’s welfare

and that of society, the board may make a final order of

discharge and issue to the paroled prisoner a certificate of

discharge[.]”

A later-enacted statute, former ORS 144.305 (1989) stated

that any parole term “shall extend for the entire term of

the prisoner’s sentence,” with a minimum active term of

supervision of three years.1 However, in Davidson v. Board

of Parole, we reviewed the history of ORS 144.310 and ORS

144.305, and concluded that the two statutes did not operate

contemporaneously, and that “ORS 144.310 remained ‘on

the books’ only as to crimes committed before the effective

date of ORS 144.305.” Davidson, 139 Or App at 293.

Despite initially declining to consider petitioner’s

discharge request based on ORS 144.305 and Davidson,

the board eventually changed course and considered the

request. Because the parties agree that former ORS 144.310

(1989) applies and petitioner is eligible to be considered for

discharge, albeit for different reasons, we assume without

deciding that former ORS 144.310 (1989) applies. The parties

have framed their arguments entirely in light of that stat-

ute. Additionally, the board has taken the position in prior

litigation that former ORS 144.310 (1989) applied to peti-

tioner, and the board has applied it in granting discharge

to at least one similarly situated parolee. We therefore only

resolve the arguments that the parties have presented, and

we do not address the validity of the board’s application of

former ORS 144.310 (1989).

OREGON APA CONTESTED CASE PROCEEDINGS

In his first assignment of error, petitioner argues

that the board erred in failing to comply with APA notice

requirements for contested case proceedings, ORS 183.413,

which petitioner asserts impacted his ability to enforce

his rights and present arguments. We conclude that the

1

The parole matrix system was largely eliminated for most felonies in 1989

with the creation of the sentencing guidelines and post-prison supervision sys-

tem, as we recently discussed in detail in Black v. Board of Parole, 341 Or App

524, 539-40, ___ P3d ___ (2025). Petitioner has been released to parole.

348 Engweiler v. Board of Parole

consideration of a request for early discharge from lifetime

parole does not qualify as a contested case proceeding, and

therefore we reject petitioner’s first assignment of error.

A contested case proceeding under the APA includes

a proceeding before an agency that meets one of the follow-

ing criteria:

“(A) In which the individual legal rights, duties or

privileges of specific parties are required by statute or

Constitution to be determined only after an agency hearing

at which such specific parties are entitled to appear and be

heard;

“(B) Where the agency has discretion to suspend or

revoke a right or privilege of a person; [or]

“* * * * *

“(D) Where the agency by rule or order provides for

hearings substantially of the character required by ORS

183.415, 183.417, 183.425, 183.450, 183.460 and 183.470.”

ORS 183.310(2)(a). Petitioner asserts that the procedures set

forth in former ORS 144.310 (1989) and former OAR chapter

255, division 90, for delaying discharge from parole, satisfy

the definition in subparagraph (A), and he asserts that the

potential for the suspension or revocation of parole satisfies

subparagraph (B). We disagree.

Former ORS 144.310 (1989) states:

“(1) When a paroled prisoner has performed the obli-

gations of parole for such time as satisfies the State Board

of Parole and Post-Prison Supervision that the prisoner’s

final release is not incompatible with the prisoner’s welfare

and that of society, the board may make a final order of dis-

charge and issue to the paroled prisoner a certificate of dis-

charge; but no such order of discharge shall be made within

a period of less than six months after the date of release on

parole, except that when the period of the sentence imposed

by the court expires at an earlier date, a final order of dis-

charge shall be made and a certificate of discharge issued

to the paroled prisoner not later than the date of expiration

of the sentence.

“* * * * *

Cite as 343 Or App 343 (2025) 349

“(3) The board may extend or renew the period of

active parole supervision or delay discharge of a parolee if

it finds, in the manner provided in ORS 144.343, that the

parolee has violated the conditions or terms of parole.”

ORS 144.343 (1989)2 dictates the hearing process to be fol-

lowed when the board has reasonable grounds to believe

that a person has violated a condition of parole, and that

revocation of parole may be warranted.

Nothing in former ORS 144.310 (1989) requires

the board to hold a hearing when considering whether to

grant a request for early discharge prior to the expiration

of the imposed term of parole. When petitioner was released

from prison, he was released to lifetime parole. The denial

of his request for early discharge was not an extension or

revocation of parole; it was also not a delay in discharge

because no discharge was currently scheduled—the board

was merely adhering to the lifetime period that had already

been imposed and declined to alter that established course.

The order also did not renew the period of active super-

vision. Therefore, the hearing process set forth in ORS

144.343 (1989) did not apply to the denial of petitioner’s

request, as the decision was not one provided for in former

ORS 144.310(3). Petitioner has identified no other statute

that requires the board to hold a hearing when deciding on

a request for early discharge from parole. Therefore this was

not a contested case under ORS 183.310(2)(a)(A).

Similarly, the board’s decision did not suspend or

revoke any right or privilege of petitioner, and therefore the

proceeding does not qualify as a contested case pursuant to

ORS 183.310(2)(a)(B). As discussed in more detail below, the

decision to grant early discharge is discretionary. Petitioner

did not have a liberty interest in early discharge and did

not otherwise have a right to a favorable decision. Although

a decision to revoke parole or extend parole past an antic-

ipated expiration date could impact the rights and privi-

leges of a parolee, and could therefore be subject to a hear-

ing and all attendant notice and process rights as provided

in ORS 144.343, that was not the situation here. Petitioner

2

ORS 144.343 has been amended numerous times since petitioner commit-

ted his crime. Or Laws 1991, ch 836, § 2; Or Laws 1993, ch 581 § 3; Or Laws 1997,

ch 313, § 12; Or Laws 2009, ch 178, § 30; Or Laws 2010, ch 89, § 13.

350 Engweiler v. Board of Parole

was already on lifetime parole and did not have a pending

expiration date. A discretionary decision to not alter the

status quo did not suspend or revoke a right or privilege of

petitioner.

Because this was not a contested case proceeding,

we reject petitioner’s argument that he was not provided

with the required notice under the APA.

APPLICATION OF FORMER OAR CHAPTER 255,

DIVISION 90

In his second assignment of error, petitioner argues

that the board engaged in rulemaking when it cited former

OAR chapter 255, division 90, as applicable to the discharge

decision. Petitioner asserts that, because former OAR chap-

ter 255, division 90, did not on its face apply to petitioner,3

the board effectively amended the rules to make them appli-

cable to petitioner. He further asserts that, even though the

board did not engage in formal rulemaking, the amendment

of former OAR chapter 255, division 90, to make it applica-

ble to him was necessary in order to avoid an equal protec-

tion problem. Petitioner then argues in his third and fourth

assignments of error that the board did not accurately apply

former OAR chapter 255, division 90, when making the deci-

sion to deny discharge.

We are skeptical that the board’s passing refer-

ence to former OAR chapter 255, division 90, constituted

rulemaking. However, we need not decide that issue because

even if the board’s action did result in the amendment of

former OAR chapter 255, division 90, to effectively revive

it and make it applicable to crimes committed at the time

of petitioner’s crime, the rules contained therein did not

impact petitioner’s request for early discharge. Steele v.

Water Resources Commission, 248 Or App 229, 240, 273 P3d

243 (2012) (“If a correct interpretation of the law would not

or could not affect the agency’s action, we have no statutory

authority to do anything to the order on review.”).

To the extent petitioner argues in his third assign-

ment of error that the board erred by not following former

3

Former OAR chapter 255, division 90, states that it pertains to parole

supervision and discharge for inmates with crimes prior to December 4, 1986.

Cite as 343 Or App 343 (2025) 351

OAR 255-90-002(1) and former OAR 255, division 90, Exhibit

I in setting petitioner’s term of parole,4 the term of parole

was not set by BAF #14 or ARR #9; petitioner’s lifetime

term of parole was set by board action in 2014 when he was

released from prison, and that decision is not before us.

The remainder of the processes set forth in former

OAR chapter 255, division 90, apply to final release from

parole or extension of parole at the end of an established

term. See former OAR 255-90-003 (discussing final release

at the end of a fixed term of parole); former OAR 255-90-

010 (describing process prior to the expiration of the term

of supervision and possible outcomes when discharge is not

granted). Petitioner is serving a lifetime term of parole, and

therefore the board was not considering whether discharge

at the end of that term was appropriate; the board was con-

sidering only whether to end parole early, a situation not

covered in those rules. Former OAR chapter 255, division

90, did not affect the board’s action and petitioner has not

established a basis for reversal.

APPLICATION OF FORMER ORS 144.310 (1989)

In his fourth assignment of error, petitioner argues

that former ORS 144.310 (1989) requires the board to make

its discharge decision based solely on a parolee’s perfor-

mance on parole, and without considering other factors.

Petitioner argues that the board’s stated reasons for deny-

ing discharge were not related to his performance on parole,

or to the welfare of petitioner or society, and that therefore

the board misapplied the statute. He further asserts that,

were the board to evaluate the discharge decision based

on his perfect compliance with parole over the past eight

years, it could not reasonably conclude that discharge was

incompatible with his welfare or that of society. The board

asserts that the decision to discharge someone from parole

4

Former OAR 255-90-002(1) states: “The Board shall establish a period of

active supervised parole as shown in Exhibit I. The Board may order an extended

supervision period if it finds that such an extension is appropriate.” Exhibit I

establishes the period of time to be served on parole, based on the offense sever-

ity rating and the individual’s criminal history risk assessment score, ranging

from six months to one year, allowing for longer periods if the crime resulted in a

death or if the nature of the offense was “of such seriousness that a longer period

of supervision is needed than that established by the above guidelines.” Former

OAR 255, division 90, Exhibit I.

352 Engweiler v. Board of Parole

prior to the expiration of the established term is entirely

discretionary, even if a parolee has satisfactorily performed

the obligations of parole, and that the broad grant of discre-

tion allows the board to consider any pertinent factors. We

conclude that the board did not err.

We review an agency interpretation of law for legal

error. ORS 183.482(8)(a). In construing a statute, we exam-

ine the text of the statute in context, and consider any useful

legislative history of which we are aware.5 State v. Gaines,

346 Or 160, 171-72, 206 P3d 1042 (2009).

As noted above, former ORS 144.310(1) (1989) states,

in relevant part:

“When a paroled prisoner has performed the obliga-

tions of parole for such time as satisfies the State Board

of Parole and Post-Prison Supervision that the prisoner’s

final release is not incompatible with the prisoner’s welfare

and that of society, the board may make a final order of

discharge and issue to the paroled prisoner a certificate of

discharge.”

We begin with the operative word “may.” Use of the word

“may” does not ordinarily impose an obligation to act:

“The word ‘may,’ as used in a statute, does not ordinarily

impose a mandatory duty; rather, ‘”may” generally implies

that the legislature intended to create only the authority

to act.’ Doyle [v. City of Medford, 347 Or 546, 570-71, 227

P3d 683 (2010)]; see also id. at 572 (‘[T]he word “may,” * * *

ordinarily connotes authority or discretion.’); Friends of the

Columbia Gorge v. Columbia River, 346 Or 415, 426-27, 212

P3d 1243 (2009) (‘As this court has stated in the statutory

context, in ordinary usage, “shall” creates a mandatory

duty, while “may” creates only authority to act.’ (Brackets

and internal quotation marks omitted.)); Nibler v. Dept. of

Transportation, 338 Or 19, 26, 105 P3d 360 (2005) (‘[T]he

word “may” ordinarily denotes permission or the author-

ity to do something.’); Office of Legislative Counsel, Bill

Drafting Manual § 4.4 (2018) (‘To confer a right, power

or privilege, use “may.” Do not use * * * “may” to impose a

duty.’).

5

The parties have not directed us to, and we have been unable to locate, any

relevant legislative history.

Cite as 343 Or App 343 (2025) 353

Jondle, 317 Or App 303, 313-14, 506 P3d 480 (2022). In pre-

viously interpreting ORS 144.310, we held:

“[T]he board’s authority to grant discharge from parole

before the expiration of a paroled prisoner’s sentence is

discretionary under [ORS 144.310]. * * * By its terms, the

statute gives the board authority to release a parolee from

parole supervision before the expiration of the sentence but

does not require that the board do so. Rather, the statute

limits the board’s ability to discharge a person from parole

to those situations where the board is satisfied, on the basis

of the parolee’s performance on parole, that the welfare of

society and the parolee will be served.”

Haskins v. Palmateer, 186 Or App 159, 165, 63 P3d 31,

rev den, 335 Or 510 (2003).

Although it is true that in certain cases it is proper

to construe the word “may” as meaning “shall” in order to

carry out the intention of the legislature, Jondle, 317 Or App

at 314, we are not persuaded that this is one of those cases.

Nothing in the text or context persuades us that the legisla-

ture intended “may” to mean “shall,” particularly in light of

the second half of former ORS 144.310(1), which limits the

discretion of the board in certain situations through the use

of less discretionary language:

“[N]o such order of discharge shall be made within a period

of less than six months after the date of release on parole,

except that when the period of the sentence imposed by the

court expires at an earlier date, a final order of discharge

shall be made and a certificate of discharge issued to the

paroled prisoner not later than the date of expiration of the

sentence.”

(Emphases added.)

We conclude that the statute establishes that a

parolee’s performance of the obligations of parole sets the

floor for the board to consider early discharge, but does not

create a requirement that it be granted. Petitioner suggests

that it would have been reasonable to deny the request for

discharge if he had violated the terms of parole or behaved

in a manner to make the victim’s family afraid of him

making contact, but that, in light of his perfect perfor-

mance on parole, the only reasonable decision by the board

354 Engweiler v. Board of Parole

is to discharge him. We disagree. Based on the concerns

expressed by the victim’s family, which the board found

to be legitimate, reasonable, and ongoing—a finding that

petitioner has not challenged—the board reasonably could

remain unpersuaded that discharge from parole was con-

sistent with the welfare of society, such that the standard

for exercising the discretion to grant discharge was not met.

Beyond that, to the extent petitioner’s argument suggests

that perfect performance on parole, standing alone, requires

the board to grant discharge, that argument is untenable in

light of the statute’s text which, as explained, makes the

decision to grant discharge discretionary even when the

board is convinced that the standards for discharge are

satisfied.

In considering petitioner’s request, the board took

into account the position of the victim’s family and their

desire for a continuing no-contact order, along with peti-

tioner’s individual circumstances, in arriving at the deci-

sion to deny final discharge. The family members of the

victim are a part of society, and the board recognized their

interest in protection from harm and fear as legitimate,

reasonable, and ongoing. Apart from arguing that those

factors have nothing to do with his performance on parole,

petitioner has not challenged those factual findings by the

board. We conclude that the board did not err in deciding

that final release from parole supervision was “prema-

ture and incompatible with the welfare of petitioner and

society.”6

6

Because we conclude that the board’s decision is discretionary even when

the standards for discharge are satisfied, we do not reach petitioner’s argument

that the phrase “not incompatible with the welfare of society” is a delegative term

that requires rulemaking or explanation in a final order. No matter the defini-

tion of that phrase, the board did not err in declining to exercise its discretion.

To the extent petitioner asserts that the board has limited the meaning of that

phrase through the mandatory processes established in former OAR 255, division

90, we reiterate our conclusion from above that those processes do not apply to the

decision made on petitioner’s request for early discharge.

Although we conclude that the board did not err in petitioner’s case, we do

not hold that the board’s discretion is unbound. For example, if the board were to

explicitly rely on a discriminatory or unlawful basis for denying discharge, such

as a petitioner’s race or ethnicity, that would be an improper basis on which to

conclude that discharge was incompatible with the welfare of the petitioner and

society. However, it is not necessary for us to resolve the limits of the board’s

discretion in this case.

Cite as 343 Or App 343 (2025) 355

DUE PROCESS

In his fifth assignment of error, petitioner argues that

the board erred in failing to provide him with notice and a

hearing prior to denying discharge, and therefore violated his

due process rights under the Fourteenth Amendment to the

United States Constitution.7 We conclude that petitioner did

not have a protected liberty interest in early discharge from

parole, and therefore the board did not violate petitioner’s pro-

cedural due process rights under the Fourteenth Amendment.

In determining whether a due process violation

occurred, we must first consider “whether the state has

deprived a person of a liberty or property interest within

the meaning of the Due Process Clause.” Haynes v. Board of

Parole, 362 Or 15, 26, 403 P3d 394 (2017), cert den, 584 US

984 (2018) (internal quotation marks omitted). Petitioner

asserts that the processes under former ORS 144.310

(1989) and former OAR chapter 255, division 90, for revok-

ing parole or delaying discharge (by extending the term of

parole) threaten a parolee’s “conditional freedom” of being on

parole, and therefore create a liberty interest. As discussed

above, petitioner was not subject to the provisions regarding

extension of parole because he was already on parole for life.

The board’s decision here also did not revoke his parole, or

threaten to revoke his parole. He therefore has not faced any

threat to his conditional freedom. The mere possibility that,

at the discretion of the board, he could be discharged prior

to the expiration of his lifetime parole term did not create a

presumption that discharge would be granted, and therefore

did not create a protected liberty interest. Cf. Haynes, 362

Or at 27 (holding that, in the context of converting a life sen-

tence to life with the possibility of parole, it was “not enough

* * * that a state offers the mere ‘possibility’ of parole; rather,

a protected liberty interest is created only when the statute

uses mandatory language that creates a presumption that

parole release will be granted when certain necessary find-

ings have been made,” and concluding that an Oregon stat-

ute using mandatory “shall” language created a protected

liberty interest). Petitioner has failed to advance any other

7

The Fourteenth Amendment provides that no state shall “deprive any per-

son of life, liberty, or property, without due process of law.” US Const, Amend XIV.

356 Engweiler v. Board of Parole

argument for what protected liberty interest he possessed.

Because petitioner did not have a protected liberty interest

in early discharge from parole, the board did not violate his

due process rights.

Affirmed.