Brooks v. Sibbetts

----ooOoo----

Vear Brooks,
Petitioner and Appellant,

v.

Michael Sibbetts,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000639-CA

F I L E D
January 5, 2001 2001 UT App 1 -----

Third District, Salt Lake Department
The Honorable Glenn K. Iwasaki

Attorneys:
Vear Brooks, Draper, Appellant Pro Se
Jan Graham and Sharel S. Reber, Salt Lake City, for Appellee

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Before Judges Jackson, Bench, and Billings.

PER CURIAM:

A person is not eligible for post-conviction relief upon any ground that "could have been but was not raised at trial or on appeal" and "was raised or addressed in any previous request for post-conviction relief or could have been, but was not, raised in a previous request for post-conviction relief." Utah Code Ann. § 78-35a-106(1)(c)-(d) (1996). Brooks filed petitions for post-conviction relief in 1995 and in 1999 and the subject petition in 2000.

In his 2000 petition, Brooks makes arguments nearly identical to his 1999 petition. He contends that he was sentenced illegally by the Board of Pardons, that the Board of Pardons exceeded its authority and violated the doctrine of separation of powers, and that the Board violated his due process rights. These claims have been previously raised and ruled upon.

Brooks also argues that the Board violated the prohibition against cruel and unusual punishment. However, he fails to show why this claim was not raised in his previous petitions. Even if this claim was properly before the trial court, it is without merit. In Monson v. Carver, 928 P.2d 1017 (Utah 1996), the Utah Supreme Court rejected the argument that Utah's indeterminate sentencing scheme constitutes cruel and unusual punishment. Id. at 1022. Moreover, Brooks's incarceration has not been "grossly excessive." Id. at 1023.

Because Brooks previously raised or could have raised the issues he raises in his 2000 petition, he is not eligible for post-conviction relief. See Utah Code Ann. § 78-35a-106(1)(c), (d). Even if we consider the merits of Brooks's new claim, he has failed to prove that the Board exceeded its jurisdiction or failed to comply with constitutional or statutory law. See Utah R. Civ. P. 65B(d)(2)(D). Accordingly, the trial court is affirmed.
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 

______________________________
Russell W. Bench, Judge
 
 
 

______________________________
Judith M. Billings, Judge