Phillips v. Haun

----ooOoo----

Robert A. Phillips,
Petitioner and Appellant,

v.

H.L. Haun, Executive Director,
Utah Department of Corrections,
Utah Board of Pardons and Parole,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990954-CA

F I L E D
August 17, 2000
  2000 UT App 249 -----

Third District, Salt Lake Department
The Honorable J. Dennis Frederick

Attorneys:
Robert A. Phillips, Draper, Appellant Pro Se -----

Before Judges Bench, Billings, and Davis.

PER CURIAM:

Robert A. Phillips appeals from an order denying a petition for extraordinary relief filed pursuant to Rule 65B(d) of the Utah Rules of Civil Procedure. This case is before the court on appellant's brief, and on a motion for summary reversal based upon appellees' failure to file a brief. The motion is denied, and we determine the appeal on the merits.

The trial court granted a motion to dismiss on the grounds that (1) the petition is barred by laches; (2) the petition sought judicial review of the substance of the Board's decision, which is precluded by statute and case law; and (3) petitioner failed to exhaust his available remedies prior to filing the petition. We conclude that the petition was properly dismissed because it sought review of the Board's substantive determinations, which are not subject to judicial review. See Renn v. Utah Bd. of Pardons, 904 P.2d 677, 685 (Utah 1995) (holding Board's substantive determinations are "exclusively within the Board's discretion," and judicial review is limited to "the fairness of the procedure followed by the Board in setting" parole dates). In Preece v. House, 886 P.2d 508, 512 (Utah 1994), the supreme court clarified that judicial review by extraordinary writ is "limited to the process by which the Board undertakes its sentencing function," and Utah Code Ann. § 77-27-5(3) (1999) precludes judicial review of the Board's substantive decisions. Id. at 512 (citations omitted). The claims in this appeal ultimately challenge the Board's substantive determination to grant a rehearing date for 2005 rather than parole or release, and they were properly dismissed. Our disposition makes it unnecessary to consider whether the trial court properly dismissed the appeal on the basis of laches or failure to exhaust remedies.

Appellant contends in his brief on appeal that his original sentence was a "determinate" sentence of fifteen years. The judgment and sentence attached to the brief reflects that he was sentenced to an indeterminate term of life imprisonment on his conviction for first degree murder, and an additional and concurrent term of five-years-to-life on his aggravated robbery conviction, with the trial court's recommendation that he serve "in excess of fifteen years" and actually serve a sentence more closely resembling life imprisonment. The period of incarceration determined by the Board "falls within the inmate's applicable indeterminate range [and] absent unusual circumstances, cannot be arbitrary and capricious." Id. Under the circumstances, we conclude that the petition did not allege "a clear abuse of the Board's discretion." Walker v. State, 902 P.2d 148, 150 (Utah Ct. App. 1995).

The dismissal is affirmed.
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 
 

______________________________
James Z. Davis, Judge