May v. Bigelow

2018 UT App 61
THE UTAH COURT OF APPEALS
R ONALD A. M AY ,
Appellant,
v.
A LFRED C. BIGELOW, BOARD OF P ARDONS AND P AROLE,
AND S TATE OF U TAH ,
Appellees.
Per Curiam Opinion
No. 20170322-CA
Filed April 12, 2018
Third District Court, Salt Lake Department
The Honorable Mark S. Kouris
No. 160901267
Ronald A. May, Appellant Pro Se
Sean D. Reyes, Erin T. Middleton, and Amanda N.
Montague, Attorneys for Appellees
Before JUDGES GREGORY K. O RME, K ATE A. TOOMEY , and
DIANA H AGEN .
PER CURIAM:
¶1 	Ronald A. May appeals the district court’s order granting
summary judgment against him and dismissing his petition for
extraordinary relief. In his petition, May sought to require the
Board of Pardons and Parole (the Board) to either immediately
parole him or provide him with a new parole hearing.1
1. Alfred C. Bigelow, as warden of the prison, was named as a
respondent. However, all claims raised by May directly involved
the Board’s actions, not Bigelow’s or the prison’s.

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¶2 	When reviewing an appeal from an order dismissing a
petition for extraordinary relief, we accord no deference to the
district court’s conclusions of law but instead review them for
correctness. See Monson v. Carver, 928 P.2d 1017, 1022–23 (Utah
1996). 	Because 	the 	decision 	underlying 	the 	petition 	for
extraordinary relief involves a parole decision of the Board, the
decision itself is “final and [is] not subject to judicial review.”
Utah Code Ann. § 77-27-5(3) (LexisNexis 2017). Judicial review
of such decisions is limited only to “the fairness of the process by
which the Board undertakes its sentencing function” and does
not include review of the result. Lancaster v. Board of Pardons, 869
P.2d 945, 947 (Utah 1994) (emphasis omitted).
¶3 	May first asserts that the Board violated his due process
rights when it revoked his parole without obtaining and/or
disclosing a toxicology report detailing the results of May’s
blood test following his arrest for driving under the influence.2
Contrary 	to 	May’s 	arguments, 	the 	toxicology 	report 	was
immaterial 	to 	the 	Board’s 	ultimate 	decision 	because 	May
admitted 	to 	using 	heroin 	on 	multiple 	occasions. 	May’s
admissions to heroin use were sufficient to support the Board’s
decision to revoke his parole. Further, May cites no authority for
the 	proposition 	that 	the 	Board 	had 	a 	duty 	to 	obtain 	the
toxicology report when (1) there is no evidence that the Board
was ever aware of the report; (2) the report was ordered by the
investigating police agency, not the Board; and (3) the report was
not used to support May’s DUI conviction, since May pled guilty
to a DUI offense prior to the completion of the toxicology report.
2. There is no evidence that prior to May’s hearing the Board
was aware that the toxicology report existed. The report was not
included in the packet of material provided to May nor was any
reference made to it in the Board’s decision. Further, it was not
the Board that requested the toxicology report. The report was
ordered by the police agency investigating May’s DUI.

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Under these circumstances, the district court did not err in
dismissing May’s claims concerning whether the Board had a
duty to obtain and disclose the toxicology report.
¶4 	As an extension of this argument, May also contends that
the Board should have modified its previous parole decision
after the toxicology report was discovered, which resulted in his
prior DUI offense being reduced to a careless driving conviction.
Once again, however, the parole revocation was based primarily
on May’s admitted use of heroin, not the DUI conviction (even
though May had pled guilty to such offense). May’s admission
to 	the 	use 	of 	heroin 	fully 	supported 	the 	Board’s 	parole
revocation.
¶5 	May 	next 	argues 	that 	his 	counsel 	was 	ineffective 	in
advising 	May 	to 	admit 	to 	parole 	violations 	without 	first
investigating the results of the toxicology report. May failed to
adequately preserve this issue for review. See State v. Schwenke,
2009 UT App 345, ¶ 19, 222 P.3d 768 (stating that “’to preserve
an issue for appeal the issue must be presented to the trial court
in such a way that the trial court has an opportunity to rule on
that issue’” (citation omitted)). May’s petition for extraordinary
relief fails to set forth any claim of ineffective assistance of
counsel. 	Further, 	his 	response 	to 	the 	Board’s 	motion 	for
summary judgment also failed to discuss any potential claim for
ineffective assistance of counsel. As a result, the district court’s
order dismissing the petition for extraordinary relief made no
mention of any such claim. While May may have made passing
references in 	his arguments to 	possible 	disagreements with
counsel, he never presented the argument to the court as a basis
to support his petition for extraordinary relief. Accordingly,
because the issue was not adequately preserved for review, we
will not address the issue for the first time on appeal. See State v.
Pecht, 2002 UT 41, ¶ 18, 48 P.3d 931 (“Generally, a defendant
who fails to bring an issue before the trial court is barred from
asserting it on appeal.”).

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¶6 	Finally, 	May 	argues 	that 	the 	district 	court 	erred 	in
determining that the 	Board did not abuse 	its discretion 	in
ordering that May would not be eligible for a parole rehearing
until 2022. May raises two statutory arguments to support this
claim. However, May did not raise these arguments in the
district court. Because these arguments were not raised in the
district court, we decline to address them for the first time on
appeal. See id.
¶7 	In regard to May’s broader argument concerning whether
the Board abused its discretion in setting the rehearing date in
2022, nothing in the record demonstrates that the district court
erred in dismissing this claim. Specifically, judicial review of the
Board’s decisions is limited to determining whether the Board
has violated his rights to procedural due process and does not
include authority for judicial review of the reasonableness of the
Board’s decision. See, e.g., Preece v. House, 886 P.2d 508, 512 (Utah
1994); Renn v. Utah State Board of Pardons, 862 P.2d 1378, 1381
(Utah Ct. App. 1993). Therefore, judicial review “is limited to the
‘process by which the Board undertakes its sentencing function’
and the courts do not ‘sit as a panel of review on the result.’”
Preece, 886 P.2d at 512 (quoting Lancaster v. Utah Board of Pardons,
869 P.2d 945, 947 (Utah 1994)). Further, “so long as the period of
incarceration 	decided 	upon 	by 	[the 	Board] 	falls 	within 	an
inmate’s applicable indeterminate range . . . then that decision,
absent 	unusual 	circumstances, 	cannot 	be 	arbitrary 	and
capricious.” Id.
¶8 	Here, May was originally sentenced to two indeterminate
life sentences. Thus, because the 2022 rehearing date fell within
May’s original sentence, the decision cannot be arbitrary and
capricious 	absent 	unusual 	circumstances. 	The 	district 	court
concluded, and we agree, that there were no such unusual
circumstances here. May admitted to violating the terms of his
parole by using heroin. Further, prior to this parole revocation,
the Board had previously revoked and reinstated May’s parole

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four times. In terms of the Board’s process, May was provided a
copy of all the materials the Board relied upon in making its
decision, and he was afforded an opportunity to defend himself
at the revocation hearing with the aid of counsel. Nothing in the
record 	demonstrates any 	unusual 	circumstances that 	would
permit review of the Board’s decision itself. Accordingly, May
has 	failed 	to 	demonstrate 	that 	the 	district 	court 	erred 	in
dismissing his claim regarding the Board’s decision to set his
next hearing date in 2022.
¶9 	Affirmed.