McCammon v. Board of Pardons and Parole

2016 UT App 119
THE UTAH COURT OF APPEALS
BRET M CC AMMON ,
Appellant,
v.
BOARD OF P ARDONS AND PAROLE,
Appellee.
Per Curiam Decision
No. 20160185-CA
Filed June 3, 2016
Third District Court, Salt Lake Department
The Honorable Todd M. Shaughnessy
No. 150905928
Bret McCammon, Appellant Pro Se
Sean D. Reyes and Brent A. Burnett, Attorneys
for Appellee
Before JUDGES GREGORY K. O RME, J. F REDERIC VOROS JR ., and
S TEPHEN L. R OTH .
PER CURIAM:
¶1 	Bret McCammon appeals a summary judgment on his
post-conviction petition seeking relief under rule 65B(d) of the
Utah Rules of Civil Procedure from a decision of the Utah Board
of Pardons and Parole. This case is before the court on a sua
sponte motion for summary disposition. We affirm.
¶2 	Following 1998 convictions on two counts of first degree
felony 	sodomy 	on 	a 	child, 	the 	district 	court 	sentenced
McCammon to consecutive prison terms of ten years to life.1
1. When 	McCammon 	was 	sentenced, 	Utah 	Code 	section
76-5-403.1(2) provided that sodomy on a child was a first degree
(continued…)

McCammon v. Board of Pardons and Parole
20160185-CA 	2 	2016 UT App 119
In his post-conviction petition, McCammon claimed that the
Board exceeded its authority by denying him a parole date
and requiring 	him 	to 	“expire” 	his 	potential 	life 	sentences.
McCammon 	claimed 	that 	at 	his 	sentencing 	hearing, 	the
sentencing judge said, “Mr. McCammon, you will be an old
man of 62 when you are let out of prison.” McCammon alleged
that this statement set his maximum imprisonment at twenty
years and that by denying him a parole date and requiring him
to 	serve 	a 	life 	sentence, 	the 	Board 	exceeded 	its 	authority.
McCammon 	also 	claimed 	that 	the 	Board 	improperly 	used
information that had 	been obtained during the presentence
investigation in his criminal case and therefore violated double
jeopardy 	guarantees. 	Finally, 	McCammon 	claimed 	that 	the
Board denied his attempts to show the Board his good character.
The post-conviction court granted summary judgment to the
Board on these claims, and McCammon appealed.
¶3 	To the extent that McCammon again asserts that the
Board exceeded its authority when it required him to expire his
life sentences, he fails to raise a substantial question for review.
See Kelly v. Board of Pardons, 2012 UT App 279, ¶ 3, 288 P.3d 39
(per curiam). Even assuming the district court made the quoted
statement at sentencing, that statement simply referenced the
minimum mandatory prison term that McCammon was required
to serve before he would be eligible to be considered for release
on parole. The district court’s statement could not alter the
Board’s statutory authority to determine both whether an inmate
will be released on parole and any parole conditions. See Utah
Code Ann. § 77-27-5(1)(a) (LexisNexis 2012).
(…continued)
felony punishable by a mandatory prison term of six, ten, or
fifteen years “and which may be for life.” Utah Code Ann.
§ 76-5-403.1 (Lexis 1999).

McCammon v. Board of Pardons and Parole
20160185-CA 	3 	2016 UT App 119
¶4 	“[W]hile the courts have the power to sentence, the Board
has been given the power to pardon and parole. These are two
separate and distinct powers, neither of which 	invades the
province of the other.” Padilla v. Board of Pardons & Parole, 947
P.2d 	664, 	669 	(Utah 	1997). 	“[S]o 	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.” Preece v. House, 886 P.2d 508, 512 (Utah 1994). In
setting 	or 	denying 	parole, 	“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.” Padilla, 947
P.2d at 669. In this case, the Board exercised its discretion in
deciding not to grant McCammon parole and requiring him to
serve the maximum term of life in prison. That decision did not
exceed the Board’s statutory authority. Furthermore, the Board’s
decisions “are final and are not subject to judicial review.” Utah
Code Ann. § 77-27-5(3). Courts do not “sit as a panel of review
on the result, absent some other constitutional claim.” Lancaster
v. Board of Pardons, 869 P.2d 945, 947 (Utah 1994).
¶5 	McCammon next contends that the Board improperly
used information contained 	in the presentence investigation
report 	(PSI) 	because 	this 	information 	had 	been 	used 	at
sentencing. He claims that the Board’s consideration of this
material violated double jeopardy. The Board’s consideration of
the PSI and other information from the criminal case record was
appropriate. Consideration of this material also did not violate
double jeopardy because McCammon was not thereby subjected
to multiple punishments. See Monson v. Carver, 928 P.2d 1017,
1026 (Utah 1996) (stating that a parole proceeding did not violate
the 	prohibition 	against 	double 	jeopardy 	because 	it 	did 	not
expose a defendant to multiple punishments for the same crime).
To the extent that McCammon claims that the PSI contained
inaccurate information, he must have raised any inaccuracies at
sentencing to allow them to be resolved by the sentencing court.

McCammon v. Board of Pardons and Parole
20160185-CA 	4 	2016 UT App 119
See Utah Code Ann. § 77-18-1(6)(a) (LexisNexis Supp. 2014). “If a
party fails to challenge the accuracy of the [PSI] at the time of
sentencing, that matter shall be considered to be waived.” Id.
§ 77-18-1(6)(b).
¶6 	The post-conviction court also correctly ruled that the
Board did not deprive McCammon of due process.
[T]wo due process requirements must be met in
parole grant hearings. First, an inmate must receive
adequate notice to prepare for a parole hearing.
Second, 	an 	inmate 	must 	receive 	copies 	or 	a
summary of the information in the Board’s file
upon 	which 	the 	board 	will 	rely 	in 	deciding
whether to grant parole.
Peterson v. Board of Pardons, 931 P.2d 147, 150 (Utah Ct. App.
1997) (citation omitted). McCammon did not claim in his post-
conviction petition that the Board violated these due process
requirements. However, McCammon claims for the first time on
appeal that he was not provided with a copy of a letter to the
Board from his ex-wife. This claim was not presented to the
district 	court 	for 	determination. 	Therefore, 	it 	will 	not 	be
considered on appeal. See 438 Main Street v. Easy Street, Inc., 2004
UT 72, ¶ 51, 99 P.3d 801 (“[I]n order 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.”
(alternations in original) (citation and internal quotation marks
omitted)). In addition, McCammon did not file a response to the
Board’s 	summary 	judgment 	motion 	to 	dispute 	the 	Board’s
representation that the due process requirements were satisfied.
Finally, McCammon’s claim that he was not allowed access to a
volunteer 	who 	might 	have 	provided 	a 	favorable 	character
reference does not rise to the level of a due process violation.
¶7 	Affirmed.