Stack v. BoP

----ooOoo----

Brian K. Stack,
Petitioner and Appellant,

v.

State Board of Pardons and Parole,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000681-CA

F I L E D
September 27, 2001 2001 UT App 280 -----

Third District, Salt Lake Department
The Honorable David S. Young

Attorneys:
Brian K. Stack, Draper, Appellant Pro Se
Mark L. Shurtleff and Sharel S. Reber, Salt Lake City, for Appellee

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Before Judges Greenwood, Billings, and Orme.

PER CURIAM:

Appellant Brian K. Stack is serving a life sentence in prison for killing a police officer. Stack's first parole hearing was in 1986. In 1994 he came before the Board of Pardons for a rehearing. In the 1994 rehearing, Stack was given a new rehearing date in 2014. Stack filed a petition for extraordinary writ, pursuant to Rule 65B of the Utah Rules of Civil Procedure, in district court. Stack appeals the denial of his petition.(1)

Stack alleges several due process violations took place in his 1994 hearing. He claims that the Board of Pardons erred in its consideration of aggravating and mitigating circumstances. He further specifically asserts that the "successive" use of past disciplinary records at three hearings constituted double jeopardy. Stack argues the that he received a disproportionate time for his offense compared to other similarly situated inmates. He claims the Board of Pardons erred in using 1985 sentence and release guidelines in his hearings in 1986 and 1994. These are all substantive claims, not procedural, and, therefore, they are not subject to review by this court. See Renn v. Utah State Board of Pardons, 904 P.2d 677 (Utah 1995); Preece v. House, 886 P.2d 508 (Utah 1994). This court's review is limited to the process the Board of Pardons uses to undertake its sentencing function. Preece, 886 P.2d at 512. As long as Stack's period of incarceration decided by the Board of Pardons falls within the applicable indeterminate range for his offense, then that decision, "absent unusual circumstances, cannot be arbitrary or capricious." Id.

Stack also claims the record does not indicate whether the entire Board of Pardons sat for the hearing. While failure to follow its own rules could be a procedural due process violation, See Renn, 904 P.2d at 685, Stack does not cite any authority which requires the entire Board to be present, nor does he provide any record citation establishing that the entire Board did not sit for his hearing. Thus, the trial court's denial of Stack's petition is affirmed. Stack's remaining claims are without merit.
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 

______________________________
Judith M. Billings, Judge
 

______________________________
Gregory K. Orme, Judge

1. This court has jurisdiction of this appeal pursuant to transfer by the Utah Supreme Court under Utah Code Ann. § 78-2a-3(2)(j) (Supp. 2000).