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134 June 4, 2025 No. 506 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).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 petitioner. 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 Nonprecedential Memo Op: 341 Or App 134 (2025) 135 KAMINS, J. Petitioner seeks judicial review of a final order of the Board of Parole and Post-Prison Supervision (board) that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 rehabilita- tion. 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 supersede