Borchers v. Belcher

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 DIVISION ONE FILED: 01/6/11 RUTH WILLINGHAM, ACTING CLERK BY: DN IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DOUGLAS BORCHERS, ) ) Petitioner/Appellant, ) ) v. ) ) DUANE BELCHER, SR., in his ) capacity as Chairman and ) Executive Director of the ARIZONA ) BOARD OF EXECUTIVE CLEMENCY; ) CHARLES L. RYAN, in his capacity ) as the Director of the ARIZONA ) DEPARTMENT OF CORRECTIONS, ) ) Respondents/Appellees. ) ) No. 1 CA-CV 10-0492A DEPARTMENT B Maricopa County Superior Court No. LC2009-000696-001 DT DECISION ORDER The Court, Presiding Judge Donn Kessler and Judges Diane M. Johnsen and Sheldon H. Weisberg participating, has considered Douglas Borchers s appeal from the superior court s denial of his special action petition challenging actions by the Arizona Board of Executive Clemency (the Board ). Borchers was sentenced imprisonment for rape. in 1974 to 20 years to life In 2006, the Board granted him parole conditioned on his relocation to Arkansas. Later, at Borchers s request, the provision the Board temporarily to allow him program in Arizona. to suspended finish a Arkansas-only sex-offender treatment On January 5, 2009, after he remained in Arizona upon his successful completion of the sex-offender program, Borchers was taken into custody and re-incarcerated. 1 The Board held two hearings to consider Borchers s requests that his parole be modified to remove the Arkansas-only provision. The evidence before the Board was that Arkansas would not permit Borchers to reside there unless he lived with his parents under strict telephone and Internet controls, and Borchers s parents refused to agree to such conditions. The Board refused Borchers s requests to modify the terms of his parole. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), -2101(E) (2003). Constitutional claims are questions of law that we review de novo. Little v. All Phoenix S. Cmty. Mental Health Ctr., Inc., 186 Ariz. 97, 101, 919 P.2d 1368, 1372 (App. 1995). We have granted Borchers s request to resolve his appeal on an expedited basis pursuant to Arizona Rule of Civil Appellate Procedure 29. Borchers argues the Board lacked the power to return him to prison without due process as required by Morrissey v. Brewer, 408 U.S. 471 (1972). full panoply of Although a parolee is not entitled to the rights due a 1 [criminal] defendant, the Upon Borchers s reincarceration, the Arizona Department of Corrections ( ADOC ) placed him in maximum security detention and designated him as a parole violator. 2 revocation of parole deprives an individual of a conditional liberty, minimum which requires requirements due of process. due process Id. for at 479-82. parole The revocation proceedings include: (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a neutral and detached hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole. Id. at 489. Borchers modify his argues terms of revoking his parole. that the parole Board s effectively decisions refusing constitute to decisions Accepting arguendo that proposition, we conclude the Board granted Borchers the due process rights to which he may have been entitled. Parole revocation proceedings involve two questions: (1) Whether the parolee has violated a condition of his parole, and (2) whether as a consequence, parole should be revoked. 480-81. Id. at Borchers does not dispute that he violated a condition of his parole by remaining in Arizona rather than relocating to Arkansas. Instead, Borchers argues only that his parole should 3 not have been revoked because he could not satisfy the condition that he relocate to Arkansas. The Board conducted testify two and hearings offer in which evidence in Borchers support of was permitted to his position. At each of the hearings, Borchers presented witnesses to testify to his reformed character, and the Board allowed him to question adverse witnesses. Borchers does not complain that the Board did not explain its reasons for its rulings. Because it is undisputed that Borchers violated parole and because the Board present afforded mitigating Borchers evidence with a fair respect opportunity to whether to re- incarceration was justified, we cannot conclude that Borchers was denied due process. See also Cooper v. Arizona Board of Pardons Ariz. and Paroles, 149 182, 184, 717 P.2d 861, 863 (1986) (judicial review of Board s denial of parole is limited to ensure due process; appellate courts cannot act as a superparole board ). Borchers cites Long v. Arizona Board of Pardons and Parole, 180 Ariz. 490, 885 P.2d 178 (App. 1994), Thomas v. Arizona State Board of Pardons and Paroles, 115 Ariz. 128, 564 P.2d 79 (1977), and Stewart v. Arizona Board of Pardons and Paroles, 156 Ariz. 538, 753 P.2d 1194 (App. 1988), in support of his argument that this court inapposite, should however. order In his each 4 release. case, These the cases defendant are either disputed that he had violated parole or was denied the ability to present mitigating evidence. For these reasons, IT IS ORDERED affirming the superior court s orders denying relief. 2 /s/ DONN KESSLER, Presiding Judge 2 Our judicial asserts him as a order is without prejudice to any administrative or proceeding Borchers might bring to challenge what he is ADOC s incorrect administrative characterization of parole violator. 5

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