Plum v. BoP

----ooOoo----

Torin A. Plum,
Petitioner and Appellant,

v.

Board of Pardons,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010776-CA

F I L E D
March 21, 2002 2002 UT App 84 -----

Third District, Salt Lake Department
The Honorable Leon A. Dever

Attorneys:
Torin A. Plum, Draper, Appellant Pro Se -----

Before Judges Bench, Orme, and Thorne.

PER CURIAM:

Appellant Torin A. Plum appeals the dismissal of his petition as frivolous on its face. Plum also moves this court to allow amendment of the petition and appeal to assert new claims that were not presented in the district court. We deny the motion to amend and grant the sua sponte motion for summary affirmance.

The district court correctly concluded that Plum's claim that a prosecutor allegedly agreed to his early release in exchange for testimony in a murder trial does not state a claim against the Board of Pardons. Even assuming that such an agreement was made, it did not bind the Board.

The determinations of the Board are not ordinarily subject to appeal or other judicial review. See Utah Code Ann. § 77-27-5(3) (1999). Thus, our review is limited to a determination of whether Plum was denied procedural due process in proceedings before the Board. See Preece v. House, 886 P.2d 508, 512 (Utah 1994) (stating fairness of process by which Board undertakes its function is reviewable by extraordinary writ). Plum cites Renn v. Board of Pardons, 904 P.2d 677, 683 (Utah 1995), for the proposition that the courts may intervene "where there is a gross and flagrant abuse of discretion and fundamental principles of fairness are flouted." We conclude that this case does not require intervention.

The district court correctly concluded that Plum's two misdemeanor convictions could be considered by the Board in determining Plum's eligibility for parole. Having concluded that there is no due process violation, we do not consider whether the Board gave appropriate weight to the convictions. We also do not review the Board's calculation of the expiration date for Plum's sentence; however, we note that the date is not inconsistent with the September 1, 1989 date on which Plum stated he was committed to prison after a suspension of the sentence was lifted.

Finally, the district court correctly dismissed the claim that Plum was denied due process by not being allowed to attend an interim hearing at which the parole date was revoked pending culmination of criminal proceedings because he did attend a subsequent hearing on the same issue.

We affirm the dismissal of the petition as frivolous on its face.
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
Gregory K. Orme, Judge
 
 

______________________________
William A. Thorne Jr., Judge