Opinion
Case No. 20020491-CA.
Filed October 3, 2002. (Not For Official Publication)
Appeal from the Third District, Salt Lake Department, The Honorable Michael K. Burton.
Donald Koeller, Draper, Appellant Pro Se.
Mark L. Shurtleff and Sharel S. Reber, Salt Lake City for Appellee.
Before Judges Jackson, Billings, and Bench.
MEMORANDUM DECISION
Petitioner/Appellant Koeller filed for extraordinary relief under rule 65B(d) of the Utah Rules of Civil Procedure alleging the Board of Pardons violated his right to due process in its parole hearing on his criminal conviction, for which he was sentenced to 0 to 5 years in prison. Specifically, Koeller claims the Board improperly relied on a letter provided by an individual, not directly a victim of his crime. The author of the letter had his house broken into and his identification stolen. While not charged with burglary regarding the materials, Koeller was in possession of the writer's identification when arrested for the crime for which he is serving a prison term. Moreover, Koeller attempted to be released from jail using the person's identification. Koeller complained to the Board about its consideration of the letter and received a letter in response, which indicated that the Board did consider the letter; however, in light of the facts of the crime and Koeller's parole history, described as "horrible," the Board stated the parole date given Koeller would have been the same regardless of the letter.
The Board has the right to rely on any factors known, or later adduced, and to determine the weight afforded such factors. See Northern v. Barnes, 825 P.2d 696, 699 (Utah Ct.App. 1992). Therefore, it was not an abuse of discretion for the Board to consider the letter. The trial court properly concluded that as long as the period of incarceration falls within the applicable indeterminate range, the decision, absent unusual circumstances, cannot be arbitrary or capricious. See Preece v. House, 886 P.2d 508, 512 (Utah 1994).
Contrary to the trial court's statement, Koeller did allege his due process rights were violated. Koeller, however, fails to demonstrate a due process violation in the Board's hearing process. See Labrum v. Utah State Bd. of Pardons, 870 P.2d 902, 908 (Utah 1993). This court is limited in its review to examining the process by which the Board undertakes its sentencing function. SeePreece, 886 P.2d at 512. Moreover, the Board of Pardons has discretion to determine how much time will actually be served. See Northern, 825 P.2d at 698.
The trial court's dismissal of Koeller's petition for extraordinary relief is affirmed.
Norman H. Jackson, Presiding Judge, Judith M. Billings, Associate Presiding Judge, and Russell W. Bench, Judge.