Thompson v. Galetka

----ooOoo----

Haywood Thompson,
Petitioner and Appellant,

v.

Hank Galetka,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990163-CA

F I L E D
December 16, 1999
  1999 UT App 375 -----

Third District, Salt Lake Department
The Honorable Pat B. Brian

Attorneys:
Haywood Thompson, Appellant Pro Se
Jan Graham and James H. Beadles, Salt Lake City, for Appellee

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Before Judges Wilkins, Billings, and Jackson.

PER CURIAM:

Appellant appeals from an order of the district court dismissing his Utah Rule of Civil Procedure 65B(d) petition seeking relief from a decision of the Utah Board of Pardons and Parole. We affirm.

There is no right of appeal from decisions of the Board of Pardons and Parole (the Board) regarding whether an inmate qualifies for parole. See Utah Code Ann. § 77-27-5(3) (1999). However, where "there is a gross and flagrant abuse of discretion and fundamental principles of fairness are flouted, a court may, giving appropriate deference to legislative policy and the extraordinarily difficult duties of the Board of Pardons, intervene to correct such abuses by means of appropriate extraordinary [relief]." Renn v. Utah State Bd. of Pardons, 902 P.2d 677, 683 (Utah 1995); see also Utah R. Civ. P. 65B(d)(2)(D) (extraordinary relief may be granted where Board has exceeded jurisdiction or failed to perform act required by law). Appellant, in challenging the Board's decision to grant him a rehearing in lieu of a parole date, fails to demonstrate that the Board grossly and flagrantly abused its discretion, flouted fundamental principles of fairness, exceeded its jurisdiction, or failed to perform an act required by law.

Appellant is not entitled to parole. He was sentenced to six years to life, meaning, his sentence is life, unless the Board decides otherwise. See Padilla v. Utah Bd. of Pardons, 947 P.2d 664, 669 (Utah 1997) (stating maximum sentence set by court must be served unless Board, in its discretion, sooner terminates it); Peterson v. Utah Bd. of Pardons, 931 P.2d 147, 150 (Utah Ct. App. 1997) (stating Board enjoys unfettered discretion in determining length of sentence within minimum and maximum limits). The Board is not required to set a parole date at a parole grant hearing, but may simply grant a rehearing. See Utah Code Ann. § 77-27-7(1) (1999) (within six months of incarceration Board shall determine date upon which offender is to have hearing to establish date of release or date for rehearing); Labrum v. Utah Bd. of Pardons, 870 P.2d 902, 909 (Utah 1993) ("At the very least, [the parole grant hearing] will operate as a benchmark to assess future status, as occurs when the Board sets no tentative release date but only another hearing date."). Moreover, the Board's discretion in deciding whether to grant parole is not constrained by the sentencing guidelines. See Preece v. House, 886 P.2d 508, 511 (Utah 1994) (stating sentencing guidelines do not have force and effect of law and any expectation of release derived therefrom is at best tenuous).(1)

The district court properly determined that the Board acted appropriately in granting appellant a rehearing date in lieu of a parole date. Accordingly, we affirm the court's order dismissing the petition.
 
 
 
 
 

______________________________
Michael J. Wilkins,
Presiding Judge
 
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 
 

______________________________
Norman H. Jackson, Judge

1. Appellant argues for the first time on appeal that the Board's refusal to grant him a parole date violates his equal protection rights because its decision is based solely on his race and religion. This court will not entertain an issue raised for the first time on appeal, even a constitutional one, absent a showing of plain error or exceptional circumstances. See State v. Webb, 790 P.2d 65, 77 (Utah Ct. App. 1990). Appellant makes neither showing, and, accordingly, we decline to address the issue.