Pitcher v. State

2018 UT App 188
THE UTAH COURT OF APPEALS
DANNY P. PITCHER ,
Appellant,
v.
S TATE OF U TAH AND BOARD OF P ARDONS AND P AROLE,
Appellees.
Opinion
No. 20160573-CA
Filed October 4, 2018
Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 150907916
Lorenzo K. Miller, Attorney for Appellant
Sean D. Reyes, Erin T. Middleton, and Amanda N.
Montague, Attorneys for Appellees
JUDGE M ICHELE M. C HRISTIANSEN F ORSTER authored this Opinion,
in which J UDGES D AVID N. M ORTENSEN and DIANA H AGEN
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 	Following a parole review hearing, the Utah Board of
Pardons 	and 	Parole 	(the 	Board) 	determined 	that 	Danny 	P.
Pitcher would serve his maximum sentence of life in prison.
Pitcher petitioned the district court for relief from the Board’s
decision. He now appeals from the district court’s dismissal of
his petition for extraordinary relief. We reverse and remand for
additional proceedings.
BACKGROUND
¶2 	In 1999, Pitcher pleaded guilty to two counts of sodomy
on a child. For each count, he was sentenced to a prison term of

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five 	years 	to 	life, 	with 	the 	two 	sentences 	ordered 	to 	run
concurrently. In January 2014, the Board held a parole hearing.
¶3 	At 	that 	hearing, 	the 	Board 	considered 	a 	letter 	from
Pitcher’s son (Son), who was not one of the victims of the
charges to which Pitcher pleaded guilty. In his letter to the
Board, Son alleged that Pitcher had sexually abused Son, Son’s
friends, and Son’s cousins. Also in his letter, Son asked the Board
to keep Pitcher in prison. Son appeared personally at the parole
hearing and reiterated this request. In addition to Son’s letter,
the Board received letters from several of the producers and
hosts of a reality television show on which Son had appeared.
These letters advocated denying Pitcher parole as well. The
Board also considered other uncharged allegations of abuse from
Idaho and Colorado.
¶4 	The Board denied Pitcher parole and ordered that he
“expire [his] life sentence.” A “Rationale for Decision” checklist
was attached to the order, identifying ten aggravating factors
and three mitigating factors that supported the Board’s decision.
¶5 	Pitcher subsequently filed a petition in the district court
pursuant to rule 65B(d) of the Utah Rules of Civil Procedure,
seeking extraordinary relief from the Board’s decision. Pitcher’s
petition alleged that the Board’s decision to expire his maximum
sentence was fundamentally unfair and constituted cruel and
unusual punishment. Pitcher also alleged that the Board violated
his due process rights by denying him “real” access to the
information the Board was considering, failing to provide a
meaningful written explanation of its decision, denying him
access to legal assistance during the parole process, and failing
to give him a “meaningful” opportunity to address allegations
made at the hearing.
¶6 	Upon initial review of Pitcher’s petition, the district court
determined that no claims in the petition were frivolous and that
the petition should be permitted to proceed. Accordingly, the
court ordered the Board to respond. The Board filed an answer

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asserting, among other defenses, that Pitcher had failed to state a
claim 	for 	which 	relief 	could 	be 	granted. 	Subsequently, 	the
district 	court 	dismissed 	Pitcher’s 	petition 	sua 	sponte,
determining that Pitcher’s claims lacked merit. Pitcher filed a
motion to reconsider, which the court denied. 	Pitcher now
appeals.
ISSUE AND STANDARD OF REVIEW
¶7 	Pitcher asserts that the district court erred in sua sponte
dismissing his petition for extraordinary relief without a motion
from the Board and without providing him an opportunity to
respond. 	Whether 	the 	district 	court 	properly 	dismissed 	the
petition is a question of law, which we review for correctness.
See Lancaster v. Utah Board of Pardons, 869 P.2d 945, 947 (Utah
1994).
ANALYSIS
¶8 	“Rule 65B of the Utah Rules of Civil Procedure allows a
petition for extraordinary relief where no other plain, speedy[,]
and adequate remedy is available.” Gilbert v. Maughan, 2016 UT
31, ¶ 15, 379 P.3d 1263 (quotation simplified); see also Utah R.
Civ. P. 65B(a). However, such a petition “is not a proceeding for
general review, and cannot be used as such.” Gilbert, 2016 UT 31,
¶ 15 (quotation simplified). This is particularly true in petitions
seeking review of decisions of the Board of Pardons and Parole,
whose decisions 	involving “paroles . . . or terminations of
sentence . . . are final and are not subject to judicial review.”
Utah Code Ann. § 77-27-5(3) (LexisNexis 2017). The court’s
review of the Board’s decisions is therefore limited to situations
where (1) procedural due process was denied, see Foote v. Utah
Board of Pardons, 808 P.2d 734, 735 (Utah 1991), or (2) there has
been a clear abuse of discretion, see Ward v. Smith, 573 P.2d 781,
782 (Utah 1978); see also Utah R. Civ. P. 65B(d)(2)(D) (permitting
individuals to seek extraordinary relief “where the Board of

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Pardons and Parole has exceeded its jurisdiction or failed to
perform an act required by constitutional or statutory law”). In
other words, courts may review “the fairness of the process by
which the Board undertakes its sentencing function,” but not the
result. Lancaster v. Utah Board of Pardons, 869 P.2d 945, 947 (Utah
1994) (emphasis omitted).
¶9 	Rule 65B permits a court to summarily dismiss a frivolous
claim 	for 	extraordinary 	relief 	without 	findings 	of 	fact 	or
conclusions of law. Utah R. Civ. P. 65B(b)(5).1 In doing so, it
must “stat[e] that the claim is frivolous on its face and the
reasons for this conclusion.” Id. If the court does not dismiss the
claim as frivolous, the court is required to serve a copy of the
petition upon the respondent and may issue an order directing
the 	respondent 	to 	answer 	or 	otherwise 	respond. 	See 	id.
R. 65B(b)(6).
¶10 	Here, the district court did not dismiss Pitcher’s claims as
frivolous but instead ordered the Board to respond. After the
Board filed an answer, but not a motion to dismiss, the district
court sua sponte dismissed the petition because it “lack[ed]
merit.” The district court’s memorandum decision dismissing
1. We note that rule 65B(b) “governs all petitions claiming that a
person has been wrongfully restrained of personal liberty other
than those specifically governed by Rule 65C.” Utah R. Civ.
P. 65B advisory committee’s note. Here, Pitcher requested relief
under subsection (d) of rule 65B, asserting that the Board “has
exceeded its jurisdiction or failed to perform an act required by
constitutional or statutory law.” Utah R. Civ. P. 65B(d)(2)(D).
Although subsection (d) does not expressly authorize dismissal
of a frivolous petition, “[a] petition of any nature which fails to
state a claim may be dismissed” as frivolous. See Lancaster v.
Utah Board of Pardons, 869 P.2d 945, 948 (Utah 1994) (explaining
that 	the 	district 	court 	properly 	dismissed 	a 	petition 	for
extraordinary relief as frivolous on its face, despite the lack of
express authority to do so in the applicable rule 65B subsection).

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the petition first emphasized the limits of the court’s jurisdiction
over the Board’s actions and then noted that (1) Son fell within
the Board’s definition of “victim,” see Utah Admin. Code R671-
203-1 (2017) (defining “victim” as “any person, of any age,
against whom a related crime or act is alleged to have been
perpetrated or attempted”)2; (2) Pitcher was not entitled to
appointed counsel in connection with the parole proceedings;
and (3) the Board’s determination that Pitcher must expire his
sentence was subject to redetermination in the future. The court
then stated that Pitcher’s claims lacked merit and dismissed the
petition.
¶11 	We agree with Pitcher that the district court erred in
dismissing his petition sua sponte without a motion from the
Board and without providing Pitcher an opportunity to argue
the merits of his petition. The Board asserts that the court may
have been merely reconsidering its non-final determination on
the frivolousness of Pitcher’s petition. But the frivolousness
determination under rule 65B considers whether “the claim is
frivolous on its face.” Utah R. Civ. P. 65B(b)(5) (emphasis added).
The court engaged in this assessment, determined that Pitcher’s
claims were not frivolous on their face, and accordingly required
the respondents to answer or otherwise respond to the petition.
We 	are 	not 	persuaded 	that, 	in 	subsequently 	resolving 	the
petition, 	the 	court 	was 	simply 	revisiting 	its 	frivolousness
determination. The court did not identify this provision as a
basis for its resolution of Pitcher’s petition, nor did the court
“stat[e] that the claim[s were] frivolous” or provide any “reasons
for this conclusion.” Id. It is also unlikely that the court regarded
the claims frivolous on their face, on reconsideration, because it
2. 	It 	is 	worth 	noting 	that 	the 	current 	version 	of 	this 	rule
eliminates this definition of “victim” and limits the definition to
those against whom the defendant committed a criminal offense
“for which a conviction was entered and for which the [Board]
has jurisdiction” or who was “originally named in an allegation
of criminal conduct.” Utah Admin. Code R671-203-1(1) (2018).

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was not until the court received the Board’s response to Pitcher’s
motion to reconsider that the court was able to determine,
relying on the Board’s arguments, that Pitcher’s claims were
meritless. By dismissing the case without further briefing or
hearing, 	the 	district 	court 	denied 	Pitcher 	notice 	and 	a
meaningful opportunity to defend against the dismissal. See
Plumb v. State, 809 P.2d 734, 743 (Utah 1990) (“Timely and
adequate notice and an opportunity to be heard in a meaningful
way are at the very heart of procedural fairness.” (quotation
simplified)).
¶12 	The district court dismissed Pitcher’s petition following
the Board’s filing of an answer. The parties do not dispute on
appeal that the court acted sua sponte, without the prompt of a
motion, and without any other apparent authority to resolve the
case at that stage. Indeed, the Board “recognizes the district
court’s dismissal may have been procedurally inappropriate.”
Addressing 	Pitcher’s 	motion 	for 	reconsideration, 	the 	court
explained that “the claims were legally insufficient to proceed”
and that “[n]o facts were found or adjudicated in this matter.”
The parties’ arguments on appeal 	illustrate the conundrum
created by the court’s sua sponte decision. With no indication of
the applicable standard or any factual findings to review, the
parties struggle to fit the district court’s memorandum decision
into 	the 	framework of 	a 	rule 	12(b)(6) 	dismissal 	or 	rule 	56
summary judgment. See generally Utah R. Civ. P. 12(b); id. R. 56.
Similarly, we are at a loss to select the appropriate measure by
which we might meaningfully review the court’s decision.
¶13 	To be sure, rule 65B authorizes special procedures for
petitions requesting extraordinary relief that are different from
the general rules of procedure. It allows the court, for example,
to set a “hearing on the merits” following the filing of a petition,
even before a responsive pleading is filed. See id. R. 65B(d)(3). It
also authorizes the court to direct the respondent to provide a
record or transcript of the challenged proceedings. See id. In
determining whether to dismiss Pitcher’s claim that he was
denied 	due 	process 	because 	he 	was 	not 	given 	adequate

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opportunity to review the evidence against him and did not
have a meaningful opportunity to defend himself at the parole
hearing, the legal question is not whether Pitcher actually had
these opportunities but whether the denial of such opportunities,
if proven, would be a violation of due process protections.
¶14 	Of additional concern, the district court’s decision to
dismiss the petition did not address all of Pitcher’s claims. The
court’s decision emphasized the limitations of its jurisdiction,
apparently considering Pitcher’s petition to be a challenge to the
result of the Board’s decision that Pitcher expire his life sentence.
See Lancaster v. Utah Board of Pardons, 869 P.2d 945, 947 (Utah
1994) (explaining that courts “must review the fairness of the
process by which the Board undertakes its sentencing function,
but [the courts] do not sit as a panel of review on the result,
absent some other constitutional claim”). Here, the court appears
to have summarily dismissed his claims based primarily on Utah
Code section 77-27-5(3), which limits judicial review of the
Board’s decisions. Many of Pitcher’s allegations, however, raised
due process or constitutional questions. These claims remain
subject to judicial review. See Foote v. Utah Board of Pardons, 808
P.2d 734, 735 (Utah 1991). While the question of whether these
claims are meritorious may be debatable, we agree with Pitcher
that he was entitled, at a minimum, to participate in a debate
about the sufficiency of the process provided by the Board at his
parole hearing. While the court did address the merits of some of
Pitcher’s claims, it did not address those claims in full, appearing
to rely instead on its assessment that the claims inappropriately
challenged the Board’s decision rather than the fairness of the
process. Most notably, the court did not touch on Pitcher’s claim
that he was denied an adequate opportunity to review the
evidence against him or to meaningfully defend himself at the
parole hearing. The court also did not address Pitcher’s claim
that the Board erred in considering letters from other parties and
relying on uncharged allegations of abuse in other states.
¶15 	The Board argues that any failure to address the issues
Pitcher asserts on appeal was harmless because Pitcher’s petition

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did not elaborate on the facts supporting his claims. But this
assertion illustrates precisely why it was error for the court to
have dismissed the case sua sponte without giving Pitcher an
opportunity 	to 	defend 	against 	the 	dismissal. 	Under 	Utah’s
“liberal standard of notice pleading,” see Canfield v. Layton City,
2005 UT 60, ¶ 14, 122 P.3d 622, a petitioner need submit only “a
short and plain . . . statement of the claim showing that the party
is entitled to relief” and a “demand for judgment for specified
relief,” Utah R. Civ. P. 8(a); see also id. R. 65B(b)(3) (requiring that
a 	petition 	for 	extraordinary 	relief 	“contain 	a 	short, 	plain
statement of the facts on the basis of which the petitioner seeks
relief”). The statement of the claim should give the respondent
“fair notice of the nature and basis or grounds of the claim and a
general indication of the type of litigation involved.” Williams v.
State Farm Ins. Co., 656 P.2d 966, 971 (Utah 1982) (quotation
simplified). 	The 	petitioner 	is 	not 	required 	to 	provide 	full
evidentiary support for the allegations at the pleading stage. We
cannot conclude that the error was harmless if Pitcher asserted
claims, in short and plain fashion, and was then denied the
opportunity to elaborate on or develop the facts supporting his
petition. Indeed, had the court proceeded to resolve the petition
at a hearing on the merits, the court could have required the
respondent to “deliver to the court a transcript or other record of
the [challenged] proceedings.” Utah R. Civ. P. 65B(d)(3).
¶16 	Here, Pitcher claimed that the Board denied him due
process 	as 	guaranteed 	under 	the 	Utah 	and 	United 	States
Constitutions. Among other allegations, Pitcher asserted that he
was denied (1) “real access to the information the Board was
considering”; 	(2) 	the 	“right 	to 	an 	attorney 	or 	other 	legal
assistance during the [Board’s] decision-making process”; and
(3) the 	“right 	to 	meaningfully 	address 	the 	Board 	and/or 	to
defend against the . . . allegations of non-victims.” These are
sufficient 	to 	fulfill 	the 	requirements 	of 	a 	short 	and 	plain
statement under our notice-pleading standard. Accordingly, we
see no merit in the Board’s argument that we can affirm the
dismissal of Pitcher’s petition on the alternative basis that he
failed to allege specific facts to support these allegations. When

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considering procedural due process claims, our supreme court
has cautioned that “[p]recisely what due process requires of the
board of pardons cannot be determined in the abstract, but must
be determined only after the facts concerning the procedures
followed by the board are” delineated. Foote, 808 P.2d at 735.
This was not done.
¶17 	We conclude that the district court erred in summarily
dismissing Pitcher’s petition sua sponte without the prompt of a
dispositive motion, and without affording Pitcher a hearing on
the merits of his petition as expressly provided for in rule 65B.
Consequently, we express no opinion on the veracity or strength
of Pitcher’s underlying claims in his petition for extraordinary
relief. 	The 	lack 	of 	legal 	authority—and 	corresponding
standard—supporting the district court’s summary dismissal,
deprives 	us 	of 	any 	meaningful 	opportunity 	to 	gauge 	the
correctness of that decision. Additionally, we decline the Board’s
invitation to step into the district court’s shoes, perform the
analysis it should have performed in the first instance, and
affirm despite the “procedurally inappropriate” dismissal.
CONCLUSION
¶18 	We conclude that the district court erred when, after
determining that Pitcher’s claims were not frivolous on their
face, it dismissed Pitcher’s petition without providing him an
opportunity 	to 	address 	the 	court’s 	dismissal 	or 	without
affording 	him 	a 	hearing 	on 	the 	merits 	of 	his 	petition.
Accordingly, we reverse the district court’s dismissal of Pitcher’s
petition 	for 	extraordinary 	relief 	and 	remand 	for 	further
proceedings.