Pagel v Utah State Prison

Pagel v Utah State Prison

IN THE UTAH COURT OF APPEALS

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Earl Pagel,

Petitioner and Appellant,

v.

Utah State Prison, Warden, and Utah Board of Pardons,

Respondents and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20031034-CA
 

F I L E D
(July 1, 2004)
 

2004 UT App 218

 

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Third District, Salt Lake Department

The Honorable Sheila K. McCleve

Attorneys: Earl Pagel, Draper, Appellant Pro Se

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Before Judges Davis, Jackson, and Thorne.

PER CURIAM:

    Earl Pagel appeals the dismissal of his petition for extraordinary relief directed to the Utah State Prison (Prison) and the Utah State Board of Pardons and Parole (Board).(1)

    Pagel contends he was denied a liberty interest by being illegally or arbitrarily removed by the Prison from the Sex Offender Treatment Program (SOTP) that he must complete as a prerequisite to obtaining parole. He further contends that he was denied prison privileges by a "Positive Behavior Reward System" that restricted privileges for inmates not involved in programming or on a waiting list. Finally, he challenged an August 2003 decision of the Board denying parole based upon his failure to complete the sex offender treatment, and alleged that the Prison and the Board conspired to keep him in prison.

    Pagel has been incarcerated since 1990, and is currently serving a five years to life sentence for a first degree felony conviction of sexual abuse of a child. He was removed from SOTP for the third time on March 13, 2001. Pagel attached to the petition a Division of Institutional Operations report to the Board for the period from August 8, 2000 to July 9, 2003, which reported the third removal for failure to progress and opined that Pagel would be a threat to the community based upon having been given the opportunity to complete SOTP on three separate occasions and failing to successfully complete the program. Pagel filed the present petition after receiving an August 2008 rehearing date from the Board.

    Pagel states in his brief filed in March 2004, that as a result of a policy change on eligibility to reapply after dismissal from SOTP, he was readmitted to the waiting list in November 2003, and has been restored privileges including his former employment, receiving "full advancement" by January 2004. Nevertheless, he now speculates, for the first time on appeal, that he will be required to wait an excessive amount of time before being readmitted to SOTP and being released on parole. We do not address this claim. See Ong Int'l (U.S.A.) Inc. v. 11th Ave. Corp., 850 P.2d 447, 455 (Utah 1995) (stating appellate courts will not consider issues raised for the first time on appeal).

    To the extent that Pagel challenges the actions of the Board, his petition must be pursued under rule 65B(d)(2) of the Utah Rules of Civil Procedure, pertaining to claims that the Board "has exceeded its jurisdiction or failed to perform an act required by constitutional or statutory law." However, "[b]ecause the Legislature has directed that there be no right of appeal from the Board of Pardons' actions, Utah Code Ann. § 77-27-5(3)[(2003)], mandamus and certiorari may not be used as a substitute for a statutory appeal." Renn v. Utah State Bd. of Pardons, 904 P.2d 677, 683 (Utah 1995). "[B]ecause 'we do not sit as a panel of review on the result absent some other constitutional claim,' the substance of the Board's decision is not reviewable by an extraordinary writ." Id. (citations omitted). Pagel claims the Board should not have denied him parole based upon his failure to complete SOTP; however, he articulates no claim that the Board denied him due process in its proceedings. See id. at 684 (stating the fairness of the Board's process in exercising its function is reviewable by extraordinary writ). Accordingly, to the extent that the petition challenges the merits of the Board's decision denying parole and setting Pagel's case for rehearing, the claims were properly dismissed.

    To the extent that Pagel sought an order compelling the Prison to reinstate him in SOTP and restore his privileges within the Prison, those claims are now moot. We review only his assertion that his sentence should be vacated.

    Pagel makes repeated reference to Leamer v. Fauver, 228 F.3d 532 (3d Cir. 2002), as supporting relief based upon the Prison's failure to provide treatment that is a prerequisite for parole. Leamer was decided under a unique statutory scheme that mandated treatment for all sex offenders as a prerequisite to parole. Because New Jersey had "created a scheme in which therapy is both mandated and promised," the Third Circuit concluded that it created a liberty interest, id. at 545, and remanded to determine whether the State's actions violated due process. See id. at 547. Pagel's case is readily distinguishable. His therapeutic requirements were based upon an individualized assessment of his rehabilitative needs. While Leamer was placed in a situation that effectively precluded him from statutorily-mandated therapy, Pagel had three opportunities over a period of roughly ten years in which to complete treatment and was dismissed for his own failure to progress. These three dismissals precipitated both the loss of privileges and the disqualification from reenrollment that impacted his parole status. Pagel is now on a waiting list for SOTP, and the Board's order indicated willingness to hold an earlier rehearing if supported by the Division of Institutional Operations.

    Im sum, claims regarding the Prison's failure to provide treatment and loss of privileges are moot, and claims challenging the merits of the Board's parole determination are not subject to judicial review. Accordingly, we affirm the dismissal of the petition.

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James Z. Davis, Judge

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Norman H. Jackson, Judge

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William A. Thorne Jr., Judge

1. Pagel also seeks to appeal from the denial of a motion for class certification; however, he has not undertaken any briefing supporting certification of a class under rule 23 of the Utah Rules of Civil Procedure, either in the district court or this court, and, therefore, we do not address this claim.