Whiteman v. Friel

Whiteman v. Friel

IN THE UTAH COURT OF APPEALS
 

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Michael Whiteman,

Petitioner and Appellant,

v.

Clint Friel and Board of Pardons and Parole,

Respondents and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040407-CA
 

F I L E D
(January 6, 2005)
 

2005 UT App 7

 

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Third District, Salt Lake Department

The Honorable Leon A. Dever

Attorneys: D. Bruce Oliver, Salt Lake City, for Appellant

Mark L. Shurtleff and Natalie A. Winch, Salt Lake City, for Appellees

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Before Judges Davis, Jackson, and Thorne.

PER CURIAM:

    Michael Whiteman appeals from the trial court's summary judgment dismissing his petition for extraordinary relief.

    Whiteman filed his petition in January 2004, alleging the Board of Pardons and Parole (Board) improperly enhanced five California misdemeanors to felonies, thereby impacting his sentencing score. As a result of the alleged error, Whiteman asserts he served four years more than he would have if the charges were counted as misdemeanors. The trial court rejected his argument, finding that the consideration of prior convictions as felonies in Utah was within the Board's discretion.

    On appeal, Whiteman identified a different issue. His brief argues that the error would not have occurred if he had been represented by counsel at his original parole hearing. He also argued that his Sixth Amendment right to counsel had been violated because of the lack of counsel at his parole hearing. His appellate brief is the first time that he raised as error an alleged violation of his right to counsel.

    After Whiteman's brief was filed, the State filed a motion for summary disposition based on Whiteman's failure to present a substantial issue meriting further consideration by the court. A motion for summary disposition based on grounds of an insubstantial question may be filed within ten days of the filing of the docketing statement. Utah R. App. P. 10(a)(2)(A). This court may suspend the requirements of rule 10 where a suspension would be in the interest of expediting a decision. See Utah R. App. P. 2; Bailey v. Adams, 798 P.2d 1142, 1143 (Utah Ct. App. 1990) (per curiam). The State's motion is untimely, and to treat it as a motion after briefing has begun would not expedite the decision.

    The State's motion and memorandum in support are responsive to the argument made in Whiteman's brief. The State should have presented its argument in its own brief. However, because the arguments are responsive to Whiteman's brief and because the issue identified by the State is dispositive, we will construe the memorandum in support of the State's motion as its brief on appeal.(1)

    The State asserts that the issue identified in Whiteman's brief on appeal was not raised below, and thus should not be considered for the first time on appeal. In his petition below, Whiteman challenged the Board practice of enhancing out-of-state misdemeanors to Utah felonies in determining length of time to be served. This is not the issue presented on appeal. Instead, he argues he was improperly denied counsel at his original parole hearing. The issue of counsel was not presented to the court below in either Whiteman's petition or in any other pleadings filed.

    The general rule is that "issues not raised at trial cannot be argued for the first time on appeal." Monson v. Carver, 928 P.2d 1017, 1022 (Utah 1996). The rule "applies to all claims, including constitutional questions, unless the petitioner demonstrates that 'plain error' occurred or 'exceptional circumstances' exist." Id. Whiteman did not raise the issue of counsel below, and does not argue plain error or exceptional circumstances on appeal. As a result, his claim that he was
denied counsel at his parole hearing is not properly before this court. Furthermore, he has presented no other issue for review.(2)

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

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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. Whiteman did not file a response to the State's motion. Thus, he has had the opportunity to respond to the State's position, but has failed to do so.

2. Moreover, Whiteman did not note in his brief that the Utah Supreme Court has already determined that there is no Sixth Amendment right to counsel at a parole hearing. See Monson v. Carver, 928 P.2d 1017, 1029 (Utah 1996).