Tucker v. State

Tucker v. State

IN THE UTAH COURT OF APPEALS

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Jeff Tucker,
Petitioner and Appellant,

v.

State of Utah,
Respondent and Appellee.

MEMORANDUM DECISION

(Not For Official Publication)
 

Case No. 20020191-CA
 

F I L E D

(June 26, 2003)
 

2003 UT App 213

 

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Third District, Salt Lake Department

The Honorable Glenn Iwasaki

Attorneys: Jeff Tucker, Florence, Colorado, Appellant Pro Se

Mark L. Shurtleff and Brent Burnett, Salt Lake City, for Appellee

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Before Judges Greenwood, Orme, and Thorne.

ORME, Judge:

"When reviewing an appeal from a dismissal of a petition for a[n extraordinary] writ, . . . we [review] the conclusions of law that underlie the dismissal . . . for correctness." Neel v. Holden, 886 P.2d 1097, 1100 (Utah 1994).

The Utah Governmental Immunity Act requires that, "[t]o bring suit against a governmental entity for [money or damages], a party must file a written notice of claim with that entity." Rushton v. Salt Lake County, 1999 UT 36,¶18, 977 P.2d 1201. See Utah Code Ann. § 63-30-11(2) (Supp. 2002); id. § 63-30-2(1). Such notice must be filed "within one year after the claim arises." Id. § 63-30-12. It is undisputed that Petitioner failed to file such a notice. For the majority of Petitioner's claims, the one-year period had expired by the time Petitioner filed his petition. Therefore, the trial court properly dismissed those claims with prejudice. See Greene v. Utah Transit Auth., 2001 UT 109,¶16, 37 P.3d 1156. For Petitioner's damages claim stemming from the action of the Utah Board of Pardons occurring in August of 2001, however, the one-year period had not expired. Therefore, the trial court should have dismissed this claim without prejudice. See Utah R. Civ. P. 41(b).

We nevertheless affirm the trial court's dismissal of this claim because Petitioner's argument--that time spent incarcerated on his federal convictions should simultaneously count towards service of his Utah sentence--is entirely without merit. See White v. Deseelhorst, 879 P.2d 1371, 1376 (Utah 1994) (stating that an appellate court "may affirm [a] judgment on any ground, even one not relied upon by the trial court"). Petitioner's argument is easily resolved under Utah Code Ann. § 76-3-202(8) (Supp. 2002), which states that "[w]hile on parole, time spent in confinement outside the state may not be credited toward the service of any Utah sentence" and that "[t]ime in confinement outside the state for a conviction obtained in another jurisdiction shall toll the expiration of the Utah sentence." See Ontiveros v. Utah Bd. of Pardons, 897 P.2d 1222, 1223-24 (Utah Ct. App. 1995) (holding that Board of Pardons properly denied appellant "credit on his Utah sentence for prison time served in California").(1) Contrary to Petitioner's assertions, the language of section 76-3-202(8) does not require that Petitioner be "convicted while on parole" for the provision to apply.

The trial court dismissed the remainder of Petitioner's claims without prejudice after having been informed by the State that Petitioner improperly brought his claims under rule 65B instead of rule 65C of the Utah Rules of Civil Procedure. The State now "submits that this may have been an error" and concedes that rule 65B is in fact "a proper avenue for seeking relief against the Utah State Board of Pardons and Parole." Nevertheless, the State urges us to affirm the dismissal of Petitioner's claims "on the alternative ground that [Petitioner] failed to state a claim upon which relief could be granted." See generally Alvarez v. Galetka, 933 P.2d 987, 989 (Utah 1997) (affirming application of rule 12(b)(6) principles to petitions brought under rule 65B).

As to Petitioner's Fourth Amendment claims, we agree that Petitioner fails to state a claim upon which relief can be granted.(2) It is well-settled that "parolees have diminished Fourth Amendment rights as to searches by parole officers." State v. Velasquez, 672 P.2d 1254, 1262 (Utah 1983). Accord State v. Burningham, 2000 UT App 229,¶8, 10 P.3d 355. Thus, a parolee's home may be searched "based [only] upon a reasonable suspicion of criminal activity or parole violation." Velasquez, 672 P.2d at 1261. Accord State v. Blackwell, 809 P.2d 135, 137 (Utah Ct. App. 1991). Likewise, "when a parole officer has reasonable suspicion to believe that a parolee is violating parole, no warrant is necessary to make an arrest." State v. Maestas, 815 P.2d 1319, 1323 (Utah Ct. App.), cert. denied, 826 P.2d 651 (Utah 1991).

The allegations concerning the informant, even if true, are alone insufficient to invalidate the search, especially given the detailed nature of the tip and the fact that the tip was directly related to the crime for which Petitioner was on parole, namely, sexual abuse of a child. See Velasquez, 672 P.2d at 1262 (stating that "under the reasonable suspicion standard, searches have generally been upheld where the parole officer's suspicion is based only on a tip by an anonymous informer, the police, or other sources").(3) Finally, as long as reasonable suspicion of a parole violation exists and "the search is reasonably related to the parole officer's duty[,] . . . a parole officer's search of a parolee's premises 'is not unlawful just because it is also beneficial to the police.'" State v. Johnson, 748 P.2d 1069, 1072 (Utah 1987) (quoting Velasquez, 672 P.2d at 1262).

While we affirm the trial court's dismissal of Petitioner's Fourth Amendment claims, we reach a different conclusion as to Petitioner's claim that his parole revocation hearing was unreasonably delayed. Pursuant to rule 65B(d)(2), "[a]ppropriate relief may be granted . . . where the Board of Pardons and Parole has . . . failed to perform an act required by constitutional or statutory law." Utah R. Civ. P. 65B(d)(2). The administrative rule that was in effect at the time of Petitioner's incarceration stated: "The Parole Revocation Hearing should be conducted within ninety (90) days from the date of the Prerevocation Hearing [which was to be conducted within fourteen days after detention] or its waiver EXCEPT in the following circumstances: . . . The Board may for good cause upon a motion by the parolee or the Department of Corrections, or upon its own motion exceed the 90 day period." Utah Admin. Code R671-504-1 (1996).(4) Petitioner alleges that his parole revocation hearing, originally scheduled for August 5, 1998, was "cancelled pending the adjudication of [federal] charges." According to Petitioner, his parole was not revoked until February 2, 2000, twenty months after his arrest on June 12, 1998. He further alleges that the revocation hearing was held even though the federal charges had not yet been adjudicated, "which was the reason given for the cancellation of the original hearing."

Although Petitioner's parole revocation hearing may well have been delayed for "good cause" beyond the requisite time, given the length of the delay, and taking Petitioner's allegations as true, his petition does at least state a claim for relief. We therefore remand for appropriate consideration of this claim and for such further proceedings as may now be appropriate.

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Gregory K. Orme, Judge

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WE CONCUR:

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Pamela T. Greenwood, Judge

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William A. Thorne Jr., Judge

1. Petitioner's further challenges pursuant to the Interstate Agreement on Detainers and alleging ex post facto application of Utah Code Ann. § 76-3-203 (Supp. 2002) were not raised in his petition below, and Petitioner has not argued plain error or exceptional circumstances on appeal. Therefore, we do not address these arguments. See, e.g., Monson v. Carver, 928 P.2d 1017, 1022 (Utah 1996).

2. We note that Petitioner's Fourth Amendment claims were adjudicated on the merits in United States v. Tucker, 2001 U.S. Dist. LEXIS 14448 (D. Utah Apr. 10, 2001). After a number of evidentiary hearings, and after thoughtful and thorough legal analysis as set forth in its written opinion, the federal district court concluded that Petitioner's Fourth Amendment rights had not been violated and therefore denied his motion to suppress. See id. at *34-35. The court subsequently convicted Petitioner on federal charges and the Tenth Circuit affirmed his conviction. See United States v. Tucker, 150 F. Supp. 2d 1263 (D. Utah 2001), aff'd, 305 F.3d 1193 (10th Cir. 2002), cert. denied, 2003 U.S. LEXIS 1478, 123 S. Ct. 1335 (2003).

3. We acknowledge that whether this claim is facially adequate presents a close call. However, even if we were to conclude the claim was adequately pleaded it would not change the result. Dismissal would still be appropriate given the prior adjudication of Petitioner's claim by the federal courts. See note 2; Utah R. Civ. P. 65B(b)(5).

4. The rule now in effect requires a parole revocation hearing to be held "within 30 days after detention unless the parolee expressly waives the hearing in writing. For good cause, the Board may continue the hearing beyond 30 days." See Utah Admin. Code R671-515-1 (2002).