Esquivel v. Bd of Pardons

----ooOoo----

Richard Esquivel,
Petitioner and Appellant,

v.

Board of Pardons and Parole;
and Dale Wright, Warden,
Respondents and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010625-CA

F I L E D
November 21, 2002 2002 UT App 387 -----

Third District, Salt Lake Department
The Honorable Ronald E. Nehring

Attorneys:
Robert M. Archuleta, Salt Lake City, for Appellant -----

Before Judges Davis, Greenwood, and Orme.

PER CURIAM:

Appellant Richard Esquivel appeals from an order dismissing his petition for post-conviction relief on the basis that it is frivolous on its face. We affirm.

The sole claim considered by the district court was whether the Board of Pardons lacked authority to require Esquivel to complete sex offender programming as a condition of release because a plea bargain allowed him to enter a guilty plea to Aggravated Burglary, rather than Attempted Aggravated Sexual Assault.(1) The district court denied the petition based upon its determination that the classification of the offense "resulting in a defendant's commitment to the Utah State Prison does not limit the scope of special conditions of parole which the [Board] may require." The district court cited Utah Administrative Code R671-402 as requiring that such conditions be "reasonably related to rehabilitation of the offender, the protection of society, or compensation of the victim." Finally, the court concluded that Esquivel had not articulated "a challenge to the reasonableness of the Board's conduct."

The decisions of the Board "in cases involving paroles, pardons, commutations or terminations of sentence, restitution, or remission of fines or forfeiture are final and are not subject to judicial review." Utah Code Ann. § 77-27-5(3) (Supp. 2002). Utah appellate courts have concluded that judicial review of Board decisions is limited to determining whether the Board has violated rights to procedural due process and does not include authority for judicial review of the reasonableness of the parole board's decision. See, e.g., Preece v. House, 886 P.2d 508 (Utah 1994); Renn v. Utah State Bd. of Pardons, 862 P.2d 1378 (Utah Ct. App. 1993). Therefore, judicial review "is limited to the 'process by which the Board undertakes its sentencing function' and the courts do not 'sit as a panel of review on the result.'" Preece, 886 P.2d at 512 (quoting Lancaster v. Utah Bd. of Pardons, 869 P.2d 945, 947 (Utah 1994)). Accordingly, once a reviewing court makes the "threshold determination that the petitioner raised only issues involving substantive matters exclusively within the Board's discretion," the petition can be dismissed. Renn, 862 P.2d at 1381. The district court identified the sole issue as a challenge to the exercise of the Board's broad discretionary authority to set the conditions for release on parole. Having made that determination, the court correctly dismissed the petition as frivolous on its face because it failed to state any claim subject to judicial review under section 77-27-5(3).

We affirm the dismissal of the petition for extraordinary relief.
 

______________________________
James Z. Davis, Judge
 

______________________________
Pamela T. Greenwood, Judge
 

______________________________
Gregory K. Orme, Judge

1. On appeal, Esquivel also claims the Board required him to register as a sex offender. This claim was not presented to the district court, nor ruled upon by that court. "It is a well-established rule that a defendant who fails to bring an issue before the trial court is generally barred from raising it for the first time on appeal." State v. Irwin, 924 P.2d 5, 7 (Utah Ct. App. 1996). Thus, we do not consider that claim.