Opinion
No. 1 CA-HC 17-0003
01-25-2018
JAMES A. BOYD, Appellant, v. ARIZONA DEPARTMENT OF CORRECTIONS, et al., Appellees.
COUNSEL James A. Boyd, Buckeye Appellant Arizona Attorney General's Office, Phoenix By Michael E. Gottfried, Daniel P. Schaack Counsel for Appellees
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. LC2017-000001-001
The Honorable Peter C. Reinstein, Judge
AFFIRMED
COUNSEL James A. Boyd, Buckeye
Appellant Arizona Attorney General's Office, Phoenix
By Michael E. Gottfried, Daniel P. Schaack
Counsel for Appellees
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in which Judge Kent E. Cattani and Judge Jennifer M. Perkins joined. JOHNSEN, Judge:
¶1 James A. Boyd appeals the superior court's denial of his petition for a writ of habeas corpus. For the reasons below, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 In July 1984, Boyd was convicted of first-degree murder, a Class 1 felony, and armed robbery committed with a deadly weapon, a Class 2 felony. The court sentenced Boyd to life without possibility of parole for 25 years for the murder and a consecutive sentence of 10.5 years for the armed robbery. The court also credited Boyd with 253 days of presentence incarceration. Later that year, Boyd pled guilty to an escape charge, and the court sentenced him to an additional four-year consecutive sentence.
¶3 In August 2009, after Boyd had been incarcerated for 25 years, the Arizona Board of Executive Clemency ("Board") granted him parole on his life sentence pursuant to Arizona Revised Statutes ("A.R.S.") section 31-412(B) (2018). Boyd then began serving the 10.5-year sentence imposed for the armed robbery. In March 2012, after the Arizona Department of Corrections ("ADC") certified him eligible, the Board granted Boyd parole on his 10.5-year sentence, again under § 31-412(B). But shortly thereafter, ADC informed the Board and Boyd that ADC had incorrectly tabulated the time remaining on Boyd's 10.5-year sentence and therefore had mistakenly certified him for parole. ADC explained that Boyd would not be eligible for parole on the 10.5-year sentence until December 2015, and stated that as a result, "[t]he Parole granted by the [Board] is null and void." Neither the Board nor Boyd took any immediate action in response to ADC's letter.
Absent material revision after the relevant date, we cite a statute's current version.
¶4 In January 2017, however, Boyd petitioned for habeas corpus relief, arguing the 2012 parole was valid and asserting he should have been released on October 25, 2016, which, by his account, was when he finished serving his remaining four-year sentence. The superior court denied Boyd's petition. We have jurisdiction over Boyd's timely appeal pursuant to Article 6, Section 9 of the Arizona Constitution and A.R.S. § 12-2101(A)(11)(a) (2018).
DISCUSSION
¶5 We review the denial of a writ of habeas corpus for abuse of discretion. State v. Cowles, 207 Ariz. 8, 9, ¶ 3 (App. 2004). A court abuses its discretion "where the record fails to provide substantial support for its decision or the court commits an error of law in reaching the decision." Id.
¶6 Boyd argues the superior court erred in denying relief because ADC did not have the power to nullify his 2012 parole. The Board and ADC both were created by statute, see A.R.S. §§ 31-401(A) (2018), 41-1602(A) (2018), and their respective jurisdictions and powers "are strictly limited by the terms of the statute[s]" that created them, Beazer Homes Arizona, Inc. v. Goldwater, 196 Ariz. 98, 100, ¶ 11 (App. 1999). Whether the Board and ADC acted within their respective "statutory jurisdiction is a question of statutory interpretation" we review de novo. Id.
¶7 "It is for the Legislature to say when the power of paroling prisoners may be exercised." State ex rel. Murphy v. Superior Court, 30 Ariz. 332, 340 (1926). As to prisoners who committed a felony before January 1, 1994, the Board "shall have exclusive power to pass on and recommend . . . paroles." A.R.S. § 31-402(A) (2018). Although the Board's power to parole prisoners is exclusive, it is not plenary. See State v. Coursey, 71 Ariz. 227, 236 (1950); Murphy, 30 Ariz. at 340-41. As applicable here, the Board may not parole any prisoner whom ADC has not certified as eligible for parole. Specifically, as set out in A.R.S. § 31-411(A) (2018):
Any prisoner who has been certified as eligible for parole . . . pursuant to § 31-412, subsection B or § 41-1604.09 shall be given an opportunity to apply for release on parole . . . . The board of executive clemency shall not entertain any other form of application or petition for the release on parole . . . of any prisoner.
¶8 The 2012 parole that ADC invalidated was issued pursuant to § 31-412(B), which states in relevant part that "the director of the state department of corrections may certify as eligible for parole any prisoner . . . who has reached the prisoner's parole eligibility date pursuant to § 41-1604.09, subsection D." As applicable, the latter provision states:
[T]he prisoner's earliest parole eligibility occurs when the prisoner has served one-half of his sentence unless the prisoner is sentenced according to any provisions of law which prohibit the release on any basis until serving not less than two-thirds of the sentence imposed by the court, the sentence imposed by the court or any other mandatory minimum term, in which case the prisoner must have served the sentence required by law.A.R.S. § 41-1604.09(D) (2018).
¶9 At the time Boyd committed the armed robbery, Arizona law specified that a person convicted of a Class 2 felony involving a deadly weapon would not be eligible for parole before serving two-thirds of the sentence imposed. A.R.S. § 13-604(G) (1983). Because Boyd was sentenced to 10.5 years on such a conviction, he was required to serve seven years in prison, less any presentence incarceration credit. See § 41-1604.09(D).
¶10 Accordingly, ADC acted outside of its statutory authority when it certified Boyd as eligible for parole on that sentence in 2012. See §§ 31-412(B), 41-1604.09(D). ADC's certification thus had no legal effect. See Mohave County v. Mohave-Kingman Estates, Inc., 120 Ariz. 417, 420 (1978) ("Actions of the Board [of Supervisors] accomplished by a method unrecognized by statute have been described as 'without jurisdiction and wholly void.'") (quoting State Bd. of Control v. Buckstegge, 18 Ariz. 277, 282 (1916)); Merrick v. Rottman, 135 Ariz. 594, 599 (App. 1983) (when state board acts "without statutory authority [its action is] therefore void."). For that reason, and because the Board cannot entertain an application for parole for which ADC has not properly certified a prisoner's eligibility, the Board lacked the power to parole Boyd in 2012. See A.R.S. § 31-411(A); Murphy, 30 Ariz. at 340-41 ("When the Legislature, if it ever does, rewrites the law, or amends it, empowering the board of pardons and paroles to release prisoners at their discretion, it will be time enough for them to exercise that power.").
¶11 Boyd does not dispute that ADC erroneously certified him as eligible for parole in 2012. He argues, however, that once the Board granted him parole, that decision could not be voided or rescinded. Contrary to Boyd's contention, when the Board exceeds its statutory power by paroling a prisoner, the parole grant can be rescinded, and no hearing is required when the defect is merely computational. See McKellar v. Arizona State Dep't of Corrections, 115 Ariz. 591, 592-94 (1977). In McKellar, a prisoner was granted parole based on an erroneous eligibility date, then "conducted himself as a model parolee" by obtaining a job, applying to college and buying a car. Id. at 592. Nevertheless, after ADC discovered the error two months later, the prisoner "was summarily taken back into custody." Id. The supreme court rejected the prisoner's argument that he was entitled to be released, stating, "We can find no authority which would allow us to order disobedience to the mandatory [sentencing] provisions . . . . Consequently, we must affirm the trial court's decision denying a writ of habeas corpus." Id. at 593-94. There, as here, no hearing was required because there was no dispute about the prisoner's correct eligibility date. Id. at 593.
¶12 Boyd cites Stewart v. Arizona Bd. of Pardons & Paroles, 156 Ariz. 538 (App. 1988), in arguing that once the Board grants a parole, it may not be reversed. In that case, however, there was no dispute about whether the prisoner was eligible for parole and no contention that the Board mistakenly had granted him parole. Instead, a member of the Board simply changed his mind about whether to parole the prisoner. Id. at 539. Under those circumstances, the court held that, having issued a valid parole grant, the Board lacked the power to rescind it. Id. at 541.
¶13 Boyd also argues that, if the Board lacked the power to parole him on the 10.5-year sentence when it did in 2012, that error has been cured with the passage of time, and we should deem him on parole on that sentence as of the date he actually became eligible. But Boyd cites no authority for the proposition that an invalid grant of parole is cured automatically over time, and in fact, since 2012, the Board twice denied him parole after ADC properly certified him eligible on the 10.5-year sentence.
CONCLUSION
¶14 ADC lacked the statutory power to certify Boyd eligible for parole from his 10.5-year sentence in 2012, and the Board lacked the power to grant him parole based on ADC's erroneous certification. For that reason, the 2012 parole was void. We affirm the superior court's denial of a writ of habeas corpus.
The only issue properly on appeal is the validity of the 2012 grant of parole. Even if Boyd now has completed his 10.5-year sentence, he does not contend he has completed or been paroled on his four-year sentence. Thus, we need not consider his contention that the parole the Board granted him in 2009 from his life sentence pursuant to § 31-412(B) means that he must be released. See Saunders v. Bd. of Pardons & Paroles, 174 Ariz. 177, 181-82 (1993). --------