Opinion
Case No. 20070434-CA.
Filed September 13, 2007. NOT FOR OFFICIAL PUBLICATION.
Appeal from the Third District, Salt Lake Department, 070901188, The Honorable Anthony B. Quinn.
Jack Leland Ray, Draper, Appellant Pro Se.
Mark L. Shurtleff and Nancy L. Kemp, Salt Lake City, for Appellees.
Before Judges McHugh, Orme, and Thorne.
MEMORANDUM DECISION
Appellant Jack Leland Ray appeals the denial of his petition for extraordinary relief directed to the Board of Pardons and Parole (the Board). This case is before the court on a sua sponte motion for summary affirmance.
Judicial review of decisions of the Board is limited. Utah Code section 77-27-5(3) states that the Board's decisions are "final and are not subject to judicial review." Utah Code Ann. § 77-27-5(3) (Supp. 2007). While the statute precluding direct appeal of Board decisions "does not preclude judicial review of such decisions by way of extraordinary writ[,] our review is limited to the process by which the Board undertakes its sentencing function." Padilla v. Utah Bd. of Pardons and Parole, 947 P.2d 664, 671 (Utah 1997). Accordingly, this court does not "engage in a substantive review of the Board's decision."Id. at 669. While we "review the fairness of the process by which the Board undertakes its sentencing function, . . . we do not sit as a panel of review on the result." Neel v. Holden, 886 P.2d 1097, 1100 (Utah 1994). Accordingly, our review is limited to determining whether Ray's right to procedural due process was satisfied.
It was undisputed that Ray received, and signed for, a copy of his Board file on July 17, 2006, in advance of the July 28, 2006 parole rehearing. The district court found that Ray had adequate time in which to review the file and address any alleged errors. Accordingly, the district court ruled that Ray received timely notice of both the rehearing and the contents of his file. Ray appeared at the rehearing, where he had an opportunity to "point out any errors, misinterpretations, or inaccuracies." Peterson v. Utah Board of Pardons, 931 P.2d 147, 152 (Utah Ct.App. 1997). The district court correctly concluded that Ray's due process rights were not violated. Ray claims that the Board should not have considered the sex offender progress report. Ray does not allege material errors in the report, but disagrees with its recommendations and disputes the qualifications of those who prepared it. He cites no support for the claim that due process requires allowing him to engage in an adversary procedure.
Ray contends the Board improperly required him to complete sex offender treatment as a precondition to being paroled because the separate sentence for his sexual offense had expired. The Board contends that Ray's consecutive sentences will not expire until 2031, although documents prepared by the Board list a separate expiration date for each offense. Ray's confusion is understandable, but his claim is without merit. When sentences are consecutive, "the Board of Pardons and Parole shall treat the defendant as though he has been committed for a single term that consists of the aggregate of the validly imposed prison terms." Utah Code Ann. § 76-3-401(8) (2003). "[W]hen indeterminate sentences run consecutively, the maximum term . . . constitutes the aggregate of the validly imposed minimum terms." Id. at § 76-3-401(8)(b). However, "if the aggregate maximum term exceeds the 30-year limitation, the maximum sentence is considered to be 30 years."Id. at § 76-3-401(8)(a). Ray's aggregate sentence has not expired, and it does not exceed 30 years. Ray's remaining arguments are challenges to the substance of the Board's decision and are beyond the scope of judicial review.
The district court also ruled that the Board did not abuse its discretion. In Padilla v. Utah Bd. of Pardons and Parole, 947 P.2d 664 (Utah 1997), the Utah Supreme Court addressed a claim that the Board's actions "were arbitrary and capricious" and the court "should review the Board's substantive decision, not just the procedure it employed."Id. at 671. The supreme court reiterated that so long as the period of incarceration falls within the applicable range, "that decision, absent unusual circumstances, cannot be arbitrary and capricious."Id. Stating that it found nothing to suggest that the Board's actions were arbitrary and capricious, the court declined to review the Board's substantive decision. See id. Similarly, the sentence here falls within the range for the aggregate of his consecutive sentences and does not support a finding that the Board abused its discretion.
Affirmed.
Carolyn B. McHugh, Judge, Gregory K. Orme, Judge, William A. Thorne Jr., Judge.