Tijerina Sr. v. BoP

Tijerina Sr. v. BoP

IN THE UTAH COURT OF APPEALS

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Dan Henry Tijerina Sr.,

Petitioner and Appellant,

v.

Utah State Board of Pardons, Paul Sheffield, Michael A. Sibbett, Gerald Cook, Clint Friel, and various John Does,

Respondents and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040171-CA
 

F I L E D
(May 20, 2004)
 

2004 UT App 169

 

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Third District, Salt Lake Department

The Honorable Robert K. Hilder

Attorneys: Dan Henry Tijerina Sr., Draper, Appellant Pro Se

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Before Judges Bench, Davis, and Jackson.

PER CURIAM:

    Dan Henry Tijerina Sr. appeals the summary dismissal of his petition for relief under rule 65B(d) of the Utah Rules of Civil Procedure. Because of the trial court's dismissal without requiring a response from the State, the Board of Pardons (Board) does not appear in this action. Thus, the matter is submitted to this court on Appellant's brief only.

    Tijerina pleaded guilty to a first degree felony in 1987, and was sentenced to an indeterminate sentence of five years to life. At his original parole date hearing in November 1988, the Board set his parole hearing date in 2013, twenty-five years later. Tijerina filed a motion for redetermination of his parole hearing date in 2003. The Board denied the motion. Tijerina then filed his petition for relief in January 2004.

    In his petition, Tijerina asserted that the Board had breached a plea agreement by setting a fixed time of twenty-five years for his parole hearing, and had violated the separation of powers in exercising a sentencing function. The trial court dismissed the petition as frivolous on its face, with no further explanation. On appeal, Tijerina reasserts that the Board breached a plea agreement and violated the separation of powers, and asserts that the trial court erred by not requiring a response from the State.

    Tijerina's argument that the Board breached a plea agreement rests on the trial court's explanation at Tijerina's plea hearing that the attempt charge did not carry a minimum mandatory sentence, although the sentence range was five years to life. Tijerina spins this into an agreement not to set a fixed number of years he must serve before being eligible for release. He asserts that the Board breached the agreement in fixing twenty-five years as a minimum he must serve before he is eligible for parole. Tijerina misunderstands the minimum mandatory and indeterminate sentencing structures. His misunderstanding does not state a claim, however, particularly given the Board's broad discretion and authority in setting parole dates.

    Tijerina also argues that the Board was performing a judicial function in setting a sentence, and the sentence was thus illegal. It is well established, however, that the Board has the authority to determine the actual length of incarceration within the sentence limits set by the trial court.

    The sentencing authority of the judiciary and the parole authority of the Board are two separate powers. "[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. Utah Bd. of Pardons, 947 P.2d 664, 669 (Utah 1997). Under Utah's indeterminate sentencing scheme, the courts set an indeterminate sentence with minimum and maximum parameters. See id. An indeterminate sentence "shall continue until the maximum period expires" unless the Board exercises its discretion to parole the offender prior to the expiration of the full term. Id.

    The effect of this indeterminate sentencing framework is that the Board determines the actual number of years a defendant will serve on a judicially imposed sentence. In fixing a number of years to serve, the Board does not sentence, but rather exercises its discretion to commute or terminate a sentence that otherwise would run to the maximum term. See id. Thus, the determination by the Board of a parole date between the minimum and maximum limits of a sentence does not violate the separation of powers. See id.

    Tijerina also asserts that the trial court should have heard from the State before dismissing his petition. However, Tijerina has not demonstrated how the absence of opposition prejudiced him. Furthermore, the trial court properly dismissed the petition as frivolous because it failed to state a claim.

    Rule 65B(d) does not expressly provide for the summary dismissal of petitions like rule 65C or 65B(c) of the Utah Rules of Civil Procedure. However, summary dismissal is permitted where a petition fails to state a claim. See Lancaster v. Utah Bd. of Pardons, 869 P.2d 945, 948 (Utah 1994) (holding a "petition of any nature which fails to state a claim may be dismissed"). Thus, the trial court could summarily dismiss Tijerina's petition as frivolous.

    Accordingly, the trial court's summary dismissal of Tijerina's petition is affirmed.

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Russell W. Bench,

Associate Presiding Judge

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James Z. Davis, Judge

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Norman H. Jackson, Judge