Hernandez v. Daroczi

----ooOoo----

Martin Hernandez,
Petitioner and Appellant,

v.

Les Daroczi,
Public Defender, Association of Weber County;
and Hank Galetka, Board of Pardons and Parole,
Respondents and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990796-CA

F I L E D
February 3, 2000
  2000 UT App 018 -----

Second District, Ogden Department
The Honorable Parley R. Baldwin

Attorneys:
Martin Hernandez, Draper, Appellant Pro Se -----

Before Judges Greenwood, Jackson, and Orme.

PER CURIAM:

Martin Hernandez appeals the dismissal of his petition for extraordinary writ challenging parole revocation proceedings before the Utah Board of Pardons. This case is before the court on a sua sponte motion for summary affirmance and on appellant's motion for summary reversal.

Hernandez was paroled in 1996 while serving a life sentence for multiple felony convictions. In October of 1997, Hernandez was detained by Adult Probation and Parole ("A P & P") based upon his alleged commission of Gross Lewdness Involving a Child, a Class A misdemeanor, in violation of his parole agreement. Criminal proceedings culminated in his conviction of Lewdness, a Class B misdemeanor. A P & P initiated parole revocation proceedings before the Board based upon the conviction. The Board revoked parole, requiring Hernandez to resume serving his prison sentence.

"Decisions of the Board of Pardons in cases involving paroles . . . are final and are not subject to judicial review." Utah Code Ann. § 77-27-5(3) (1999). To the extent Hernandez seeks review of the merits of the Board's decision, we do not consider his claims further.

Hernandez's claims of procedural violations in the revocation proceedings are without merit, and the claim the Board lacked jurisdiction over the proceedings is also meritless. The Board has statutory authority to "revoke the parole of any person who is found to have violated any condition of his parole." Utah Code Ann. § 77-27-11(1) (1999). Accordingly, it is not necessary for a parole revocation proceeding to be pursued in court. Hernandez was detained by A P & P on a suspected parole violation, and the Board issued a warrant justifying his continued detention within seventy-two hours, as required by Utah Code Ann. § 77-27-11(2) (1999). Utah Code Ann. § 77-27-11(3) (1999) authorizes "[a]ny member of the board [to] issue a warrant based upon a certified warrant request." Hernandez did not demonstrate that the Board denied him procedural due process or exceeded or abused its statutory authority in the proceedings.

Hernandez's claims that the parole revocation proceedings violated double jeopardy guarantees and allowed the Board to define and punish crimes are also without merit. "A parole revocation proceeding is a civil proceeding that is entirely independent of any related criminal proceeding, even if the criminal charges are based on the same facts as those on which a charge of parole violation are based." Peterson v. Utah Bd. of Pardons, 907 P.2d 1148, 1154 (Utah 1995). Accordingly, double jeopardy did not prevent the Board from finding a parole violation based on the same facts that supported the criminal conviction. Similarly, the Board's decision revoking parole does not define or punish a crime; it merely revokes the conditional release of the parolee who remains in legal custody until his sentence is terminated. See Stilling v. Utah Bd. of Pardons, 933 P.2d 391, 394 (Utah Ct. App. 1997). Finally, a parolee has no expectation of parole under the Utah statutes that would create a liberty interest entitled to due process protection under the United States Constitution. See Malek v. Haun, 26 F.3d 1013, 1016 (10th Cir. 1994).

Hernandez has provided no meaningful analysis or support for his claim that the Utah Legislature has violated the Utah Constitution by delegating judicial powers to "quasi-judicial officers" in violation of Article VI, Section 28 of the Utah Constitution. In addition, the Utah Constitution establishes a Board of Pardons with authority over parole matters in Article VIII, Section 12. We do not consider this claim further, and we conclude the remaining claims are similarly without merit.

Accordingly, we affirm the dismissal of the petition as frivolous on its face, and deny the motion for summary reversal.
 
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 
 

______________________________
Norman H. Jackson, Judge
 
 
 
 

______________________________
Gregory K. Orme, Judge