Padilla v. Utah Board of Pardons

relief. In his petition, Padilla sought relief from the actions of the

Utah Board of Pardons and Parole (the "Board") in relation to an original

Padilla's first parole grant hearing was held before the Board on

July 27, 1988. At that hearing, one of the members of the Board recused

herself because she was related to Padilla's victim, Palacios. She then

sat in the audience during the hearing. Padilla filed a habeas corpus

petition (the "first petition"), challenging the actions of that Board.

The court of appeals ordered a new hearing, finding that although the

particular Board member recused herself, all actions of that Board were

tainted. Padilla v. Utah Bd. of Pardons, 839 P.2d 874 (Utah Ct. App.

2003. In several of the documents relating to the December 1992 hearing,

the Board referred to it as a "rehearing" instead of an original parole

grant hearing. In May 1993, Padilla filed another habeas petition (the

"second petition"), challenging the December 1992 hearing. In the second

petition, Padilla argued that the Board erred in not granting him a "new"

hearing as had been required by the court of appeals and in having only

one officer appear at the hearing. While this petition was pending, and

before this court's decision in Labrum v. Utah State Board of Pardons,

870 P.2d 902 (Utah 1993), the Board agreed to hold a new original parole

grant hearing on October 29, 1993, to remedy any alleged deficiencies in

Board announced that it would take the case under advisement and granted

Padilla ten days in which to submit any additional information he thought

might be relevant to the Board's decision. The Board further promised to

inform Padilla of any additional relevant information that might come

before the Board during that time and, if he had not already had the

1993. In Labrum, this court held that because an original parole grant

hearing is analogous to a sentencing hearing conducted by a judge in a

court of law, certain due process protections apply pursuant to article

I, section 7 of the Utah Constitution. Id. at 911. Specifically, the

court held that due process requires that inmates must be afforded

"timely disclosure of the contents of their files (or reasonable

summaries thereof) prior to conducting original parole grant hearings."

Id. The court then addressed the issue of retroactivity and concluded

that the benefits of its decision should extend not only to all future

original parole grant hearings but also to "any inmate who currently has

a claim pending in the district court or on appeal before this court or

the court of appeals challenging original parole grant hearing procedures

court's decision in Labrum, Padilla moved to amend his second petition,

which was still pending in district court, to include claims based on

Labrum. However, in May 1994, the district court denied Padilla's motion

to amend and dismissed Padilla's second petition as moot on the ground

that the Board had granted Padilla the October 29, 1993, hearing to

rectify any procedural problems allegedly occurring at the December 1992

Rules of Civil Procedure (the "third petition").⁽²⁾ In that petition,

Padilla made numerous claims that his due process rights had been

violated in relation to the October 29, 1993, hearing, including the

following: (1) The lack of a procedure by which a direct appeal of Board

decisions can be sought violated due process rights; (2) the Board's

refusal to allow Padilla to examine his file denied him due process of

law under Labrum; (3) the Board's refusal to let Padilla's attorney speak

for him during the hearing denied Padilla the right to effective

assistance of counsel; (4) the Board denied Padilla due process of law by

failing to provide a detailed written rationale for its decision; and

(5) the Board's performance of the sentencing function, which is

inherently a judicial function, violated the separation of powers

doctrine. In July 1995, the district court denied the petition, and

(c) of the Utah Rules of Civil Procedure. Padilla further argues that he

is entitled to the benefits of the Labrum decision because the Board's

final decision was made eight days after Labrum was issued.

Alternatively, Padilla contends that Labrum applies because his second

petition was still pending in district court at the time Labrum was

decided. Padilla also repeats the five claims, listed previously, which

he made in his petition to the district court and argues in addition

(1) that the Board did not make an adequate inquiry into the merits of

the case because it reached the same rehearing decision after the

October 29, 1993, hearing as it did following the December 1992 hearing;

(2) that he was denied due process because he did not have the

opportunity to confront his accusers and present evidence at the hearing;

and (3) that the Board's decision was arbitrary and capricious, thereby

dismissal. They are reviewed for correctness." Neel v. Holden, 886 P.2d

1097, 1100 (Utah 1994). Further, "while 'we must 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.'" Id. at 1100 (quoting

Civil Procedure. Padilla argues that both subsections (b) and (c) of

rule 65B are also applicable. In Renn v. State Board of Pardons, 904

P.2d 677, 682 (Utah 1995), we held that the writ of habeas corpus is

available only to a petitioner challenging the legality of his or her

detention, the lawfulness of the court-imposed sentence, or the

conditions of his or her imprisonment. We also stated, "Rule 65B(c)

cannot be used to challenge Board actions that might be challenged under

Because these challenges do not involve the legality of his detention,

the conditions of his imprisonment, or a court-imposed sentence, the writ

of habeas corpus is not available. His claims challenging actions taken

by the Board of Pardons are reviewable only under 65B(e). Id. at 683,

685. Accordingly, we agree with the district court's conclusion in that

above, this court held in that case that the Board must provide an inmate

with "adequate notice to prepare for a parole release hearing, and . . .

copies or a summary of the information in the Board's file on which the

Board will rely." Id. at 904. The court then held that its decision

would apply to all original parole grant hearings held on or after the

date of the decision and also to "any inmate who currently has a claim

pending in the district court or on appeal before this court or the court

of appeals challenging original parole grant hearing procedures on due

held his original parole grant hearing on October 29, 1993, more than a

month before Labrum was decided, the Board did not actually make its

decision until December 14, 1993, eight days after Labrum was decided.

This argument is unavailing. As the term plainly implies, a "hearing"

contemplates a forum where parties to a matter have the opportunity to be

heard. See Black's Law Dictionary 852 (4th ed. 1968). This

interpretation is clearly supported by sections of the Utah Code relating

to Pardons and Parole. Section 77-27-5(1)(c) of the Utah Code (emphasis

added)⁽³⁾ states, "No restitution may be ordered, . . . no parole, pardon,

or commutation granted or sentence terminated, except after a full

hearing before the board or the board's appointed examiner in open

session." Later, the Code states, "The [Board] shall determine . . . a

date upon which the offender shall be afforded a hearing to establish a

date of release or a date for a rehearing, and shall promptly notify the

offender of the date." Utah Code Ann. § 77-27-7(1) (emphasis added).

When the Code addresses the issue of victims attending the hearing, it

specifically states, "As used in this section, 'hearing' means a hearing

for a parole grant or revocation, or a hearing of either of these if the

offender is present." Utah Code Ann. § 77-27-9.5(1)(a) (emphasis added).

Thus, the "hearing" contemplated by Labrum where due process protections

may apply is the original parole grant hearing at which the offender has

the opportunity to appear before the Board in open session to discuss

issues relating to the setting of the offender's parole or rehearing

date. The Labrum protections, therefore, do not apply to the Board's

closed-door deliberations held after such hearing. Thus, we reject

Padilla's contention that Labrum applies to this case because the Board

district court. This argument also fails, however. Padilla's second

petition, which was pending at the time Labrum was decided, challenged

the actions of the Board in relation to his December 11, 1992, hearing,

not his October 29, 1993, hearing. All of the issues in the matter

before us, however, relate only to the Board's actions regarding the 1993

hearing. The actions of the Board in relation to the 1992 hearing are

not properly before us. Padilla argues that Labrum should still apply

because he moved to amend his second petition to include Labrum claims

relating to the 1993 hearing. However, the district court refused to

allow the amendment and dismissed Padilla's second petition as moot

because the Board granted Padilla a new hearing (i.e., the October 29,

1993, hearing) to resolve the concerns Padilla raised in his second

petition. If Padilla disagreed with the denial of his motion to amend

and the dismissal of his second petition, he should have appealed. Since

However, several of the issues Padilla raises were inadequately briefed,

sentence, Padilla asserts, is a judicial power and thus the Board's

wielding that power is a violation of the separation of powers doctrine

as found in article V, section 1 of the Utah Constitution. Padilla's

argument is flawed, however. Initially, we point out that the Board's

power itself is constitutionally derived. Article VII, section 12 of the

Utah Constitution states, with emphasis added, that the Board, "upon such

conditions as may be established by the Legislature, may remit fines and

remains in the exclusive control of the judiciary, which is bound by

different period of time, shall be construed to be a sentence for the

term between the minimum and maximum periods of time provided by law and

distinct powers, neither of which invades the province of the other.

Under our indeterminate sentencing scheme, a court must set an

indeterminate sentence as provided by statute. By its very term, the

"indeterminate" sentence shall continue until the maximum period expires

unless the Board, in its discretion, terminates or commutes the

number of years a defendant is to serve.'" Labrum, 870 P.2d at 907

(quoting Foote v. Utah Bd. of Pardons, 808 P.2d 734, 735 (Utah 1991)).

We noted in Labrum that "by acknowledging in Foote that the parole

function is a complex, multi-dimensional proceeding which includes

sentencing, we have opened the door to a more extensive review of the

constitutional adequacy of procedures that the Board, and probably the

legislature, would prefer to exclude from such review." Id. at 911

(emphasis added). Clearly, the Board's setting a parole date, which may

occur sometime between the statutory minimum and maximum periods,

operates to establish a fixed, or determinate, period of time during

which the offender will serve his or her sentence. Nevertheless, the

fact that the Board has been given this power does not mean that the

Board exercises a "sentencing" power. Rather, the Board merely exercises

its constitutional authority to commute or terminate an indeterminate

sentence that, but for the Board's discretion, would run until the

maximum period is reached. Therefore, we hold that the Board's exercise

of its parole power in setting determinate parole dates does not violate

the separation of powers doctrine of article V, section 1 of the Utah

rationale sheets utilized by the Board at each hearing were slightly

different, an adequate inquiry into the merits of his case could not have

been made. Analysis of this claim, however, would require this court to

engage in a substantive review of the Board's decision, which we have

consistently refused to do. See Neel, 886 P.2d at 1100 (citing

Lancaster, 869 P.2d at 947). Padilla also claims that the preprinted

rationale sheets, on which the Board checks off "mitigating" and

"aggravating" factors it deems relevant in making the parole

determination, do not provide a detailed enough explanation of the

Board's actions to satisfy due process. We disagree. In Preece v.

House, 886 P.2d 508 (Utah 1994), we held that the Board must comply with

its own rules. Id. at 511-12; see also Monson v. Carver, 928 P.2d 1017,

1031 (Utah 1996). At the time of the 1993 hearing, the Board's rules

required simply, "The decision of the Board shall be reduced to writing,

including the rationale for the decision." Utah Admin. Code R671-305-1

(1993). In Monson, we held, "While perhaps not a perfect explanation of

the Board's rationale, this document [i.e., the rationale sheet]

nonetheless satisfies the Board's own requirement that it provide a

written explanation of the reasons for its decision." Monson, 928 P.2d

at 1031. Because our opinion has not changed since Monson, we conclude

that the rationale sheets used by the Board to explain its parole

confer with him "during portions" of the hearing.⁽⁵⁾ We stated in Monson,

"Because it is well settled that the [United States Constitution's] Sixth

Amendment right to counsel is not implicated in noncriminal proceedings,

Neel, 886 P.2d at 1103, we hold that the amendment does not require the

effective assistance of counsel at parole grant hearings." 928 P.2d at

1029. Padilla's claim also fails under article I, section 7 of the Utah

Constitution. In Neel, we stated that "the touchstone of due process

[under article I, section 7] in the context of parole hearings is whether

the proposed procedural due process requirement substantially furthers

the accuracy and reliability of the Board's fact-finding process." 886

P.2d at 1103. In that case, we held that the petitioner's due process

rights were not violated, because he had "failed to show how the further

participation of counsel at the hearing would have affected the accuracy

of the information considered by the Board." Id.; see also Monson, 928

Mr. Padilla the meaningful opportunity to prepare to rebut inaccurate

information relied on by the Board." However, Padilla fails to state

what "inaccurate information" he is referring to or, specifically, how

additional participation by his attorney would have helped the fact-finding process. In any event, Padilla's factual claims on this issue

appear to be simply incorrect in light of the fact that Padilla's

attorney did get the opportunity to address the Board openly near the

not only has Padilla completely failed to allege any specific instance

where he could have but was not allowed to confront his accusers or

present evidence, the record clearly demonstrates that exactly the

opposite was true. At the very outset of the hearing, Don Blanchard, the

member of the Board conducting the hearing, stated, "I will note any and

all information you wish to provide at this hearing, and give you an

opportunity to raise any concerns, to make any comments that you feel are

directly relevant to your case." Later, Blanchard stated, "I am going to

share with you every bit of information that is contained in your file,

pursuant to our rules and the provisions for our conducting of hearings,

. . . on which we are going to rely, or which will impact our decision."

Still later, Blanchard told Padilla, "You are welcome to ask questions,

to clarify any of the information that I review, to make comment on it,

and to later on in the hearing speak in your own behalf." During the

hearing, two relatives of Padilla's victim were allowed to address the

Board. At the conclusion of their testimonies, Blanchard asked,

"Mr. Padella [sic], you have heard the victim's testimony that's been

provided, . . . would you like to respond to that testimony?" Padilla

then proceeded to respond. Finally, near the conclusion of the hearing,

Blanchard granted Padilla ten more days to submit to the Board any

additional information which Padilla deemed relevant. Blanchard

concluded by promising Padilla that if any information that could impact

the Board's decision was submitted by other parties during that ten-day

period, the Board would then allow Padilla the opportunity to respond to

such information. In the face of all this evidence, it is absurd for

Padilla to argue that he was not permitted to confront his accusers or

unconstitutional. Padilla claims that the section violates both article

I, section 12 of the Utah Constitution, which guarantees the right to

appeal in all criminal prosecutions, and article I, section 7 of the Utah

Constitution, which guarantees due process of law. However, because an

original parole grant hearing is not a criminal proceeding, article I,

section 12 by its own terms does not apply. Further, we have already

addressed the appealability issue numerous times and have never found it

to run afoul of the Utah Constitution. See, e.g., Preece, 886 P.2d at

512; Foote, 808 P.2d at 735. As we stated in Preece, the statute

precluding direct appeal of Board decisions "does not preclude judicial

review of such decisions by way of extraordinary writ. Foote, 808 P.2d

at 735. However, our review is limited to the 'process by which the

Board undertakes its sentencing function.'" Preece, 886 P.2d at 512

decision, not just the procedure that it employed. We stated in Preece

that "so long as the period of incarceration decided upon by the [Board]

falls within an inmate's applicable indeterminate range, e.g., five years

to life, then that decision, absent unusual circumstances, cannot be

arbitrary and capricious." 886 P.2d at 512. To support his argument,

Padilla asserts that the Board has had a history of "doggedly refusing"

Padilla his due process rights, that the rationale sheets used by the

Board were insufficient, and that Padilla has been an "exemplary inmate"

since his incarceration. These do not constitute sufficiently unusual

circumstances to justify review of the Board's substantive decision,

however. Padilla has failed to back up his first assertion with any

evidence whatever. Moreover, we have already determined that the Board's

use of the rationale sheets in this case was proper. Further, Padilla's

claim that he has been an exemplary inmate is irrelevant. We find

nothing to suggest that the Board's actions in this case have been

arbitrary and capricious, and therefore, we refuse to review the