Jones v. Board of Parole

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 consider-

ation hearing. In one order (BAF 12), the board found that

petitioner had not met his burden of proof in demonstrat-

ing 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 author-

ity, 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 peti-

tioner 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 cir-

cumstances 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 sit-

uated 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 peti-

tioner’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 hear-

ing, 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 consider-

ation 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 hear-

ing. 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 specifi-

cally, petitioner contended that, by holding a dual hearing,

“the [b]oard is denying [him] the benefit of his commuta-

tion by: (1) requiring he meet two distinct release standards,

(2) denying him the benefit of the more robust juvenile reha-

bilitation 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 man-

datory hearings concurrently because of the close proxim-

ity in time with your upcoming parole consideration date,

and to reduce the administrative inconvenience (including

potentially to witnesses and victims) and expense associ-

ated with conducting the two related release hearings sep-

arately but only several months apart. The Board’s deci-

sion 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 par-

ticipate 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 evalu-

ations as unreliable, not current, or irrelevant. The board

admitted the psychological evaluations as exhibits over peti-

tioner’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 demon-

strate his maturity and rehabilitation.”). To that end, peti-

tioner 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 rel-

evant 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 juve-

nile 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 pro-

grams 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 evalua-

tion by Dr. Wells (Wells evaluation). That evaluation, unlike

the Hamilton evaluation, diagnosed petitioner with Post-

Traumatic 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 educa-

tion 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 hear-

ing 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 sub-

stantially 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 sup-

port 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 commis-

sion 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 vic-

tim, 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 bur-

den 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 evalua-

tion, 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 rea-

son, 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 rea-

son, 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

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 peti-

tion 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 state-

ment 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 prelim-

inary. 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 con-

sideration 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 refer-

encing 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, peti-

tioner’s challenge is timely.

Turning to the merits of petitioner’s argument, peti-

tioner raises four distinct arguments as to why that deci-

sion was erroneous. First, petitioner contends that holding

a dual hearing violated the terms of the Governor’s commu-

tation by failing to give full effect to the terms of her com-

mutation order, and by subjecting him to a more severe sen-

tence. 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 clem-

ency 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 consid-

eration 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 deci-

sion 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 petition-

er’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, petition-

er’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 constitu-

tionally 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 discretion-

ary 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 wit-

nesses “is not a requirement for a constitutionally adequate

parole consideration hearing”).

Assuming without deciding that Oregon has cre-

ated a protected liberty interest in petitioner’s early release

through the juvenile and parole consideration hearing pro-

cedures, 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 qualify-

ing 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 author-

ity to hold his juvenile and parole consideration hearings

Cite as 350 Or App 432 (2026) 443

concurrently. Petitioner points to the statutes and rules gov-

erning 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 crea-

tures of statute and can only act with the power and author-

ity 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 stat-

utes 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 find-

ings, 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 con-

victed 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 con-

sideration 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 authoriza-

tion 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 per-

son 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 defen-

dant 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. (inter-

nal quotation marks omitted). “An executive official’s deci-

sion 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 eli-

gible 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 hear-

ings, the resources required, or needs of any potential vic-

tims 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 demon-

strated 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 argu-

ment 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 matu-

rity 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 “con-

sider 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 signifi-

cant 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 culpabil-

ity 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 hear-

ing.” 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 sup-

ported by substantial evidence or reasoning.

When evaluating whether substantial evidence sup-

ports 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 impermis-

sibly 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 matu-

rity and rehabilitation based on the evidence that it relied on

and its reasonable inferences. That evidence included peti-

tioner’s DOC records, which indicated intermittent partici-

pation in programming, chronic misconduct (including sev-

eral 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 pre-

scribed 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 argu-

ments 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 evalua-

tion 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 con-

tends 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 rea-

sonably 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 hear-

ings 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 author-

ity 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 admis-

sibility of evidence in parole consideration hearings. However, we note that, at a

parole consideration hearing, the board may review “[t]he examining psycholo-

gist 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 con-

clude 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 per-

sonality 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 infrac-

tions, petitioner’s high risk for future violence, and petition-

er’s refusal to participate in the parole consideration hear-

ing. 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.