Payne Sr. v. B of P&P

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Payne Sr. v. BofP&P

IN THE UTAH COURT OF APPEALS

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Raymond K. Payne Sr.,

Petitioner and Appellant,

v.

State of Utah, Department of Corrections, Board of Pardons and Parole,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030631-CA
 

F I L E D
(October 23, 2003)
 

2003 UT App 364

 

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Third District, Salt Lake Department

The Honorable William B. Bohling

Attorneys: Raymond K. Payne Sr., Draper, Appellant Pro Se

Mark L. Shurtleff and Natalie A. Wintch, Salt Lake City, for Appellee

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Before Judges Jackson, Bench, and Orme.

PER CURIAM:

Appellant Payne filed for extraordinary relief under rule 65B(e) of the Utah Rules of Civil Procedure. He claims that the Board of Pardons violated his due process rights in relying on "hearsay" evidence in his board hearing and in relying on offenses for which he was charged, but not convicted.

This court issued a sua sponte notice of consideration for summary affirmance on the basis that the questions presented on appeal are so insubstantial as to not merit further consideration. Both parties responded, although, Payne has characterized his response as a "Brief in Support of Summary Judgment Motion."

The issue of how much time an inmate will actually serve on an indeterminate sentence is left to the exclusive discretion of the Board of Pardons and is not typically subject to judicial review. See Labrum v. Utah Bd. of Pardons, 870 P.2d 903, 907 (Utah 1993). This court's review is limited to the process the Board uses to undertake its sentencing function. See Preece v. House, 886 P.2d 508, 512 (Utah 1994). As long as the period of incarceration falls within the applicable indeterminate range, the decision, absent unusual circumstances, cannot be arbitrary or capricious. See id.

Payne has not provided any support for his assertion that improper information was considered by the Board. Moreover, the Board has a right to rely on any factors known, or later adduced, and to determine the weight afforded such factors. See Northern v. Barnes, 825 P.2d 696, 699 (Utah Ct. App. 1992). Payne has not demonstrated that the Board failed to follow its own rules. See Padilla v. Utah Bd. of Pardons & Parole, 947 P.2d 664, 670 (Utah 1997), nor has he demonstrated that the Board's actions were arbitrary and capricious. See id. at 671.

Accordingly, the trial court's dismissal of Payne's petition for extraordinary relief is summarily affirmed.

______________________________

Norman H. Jackson,

Presiding Judge

______________________________

Russell W. Bench, Judge

______________________________

Gregory K. Orme, Judge

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