Edwards v. State

Edwards v. State

IN THE UTAH COURT OF APPEALS
 

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Gary Brent Edwards,

Petitioner and Appellant,

v.

State of Utah,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040422-CA
 

F I L E D
(December 2, 2004)
 

2004 UT App 453

 

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Third District, Salt Lake Department

The Honorable William B. Bohling

Attorneys: Gary Brent Edwards, Draper, Appellant Pro Se

Mark L. Shurtleff and Sharel S. Reber, Salt Lake City, for Appellee

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Before Judges Billings, Bench, and Orme.

PER CURIAM:

    This case is before the court on its own motion for summary affirmance on the basis that the questions presented for review are so insubstantial as to not merit further consideration. See Utah R. App. P. 10. Appellant Gary Edwards appeals the trial court's dismissal of his petition for extraordinary relief filed pursuant to rule 65B of the Utah Rules of Civil Procedure.

    Edwards was originally sentenced to a prison term of ten years to life for the offense of sodomy of a child, a first degree felony. He was sentenced on February 14, 1986. His first parole hearing was scheduled for February 25, 1987. A rehearing was set for February 8, 2001. At the February 8, 2001 Parole Board hearing Edwards was given a parole date of "natural life." The Board, however, indicated that a subsequent hearing would be considered if Edwards enrolled in, and showed progress in, sex offender treatment. A special attention review was held July 30, 2002. The result of this hearing was again a parole date of natural life, but this time with no notation regarding sex offender treatment.

    Edwards argues that the Board improperly took the role of a judge and effectively resentenced him to natural life, a sentence he argues was different than the initial sentence imposed by the judge. He claims this action by the Board violated his due process right, his right against double jeopardy, separation of powers, right against cruel and unusual punishment, and right to counsel (particularly because he claims he is mentally ill). Edwards also seeks monetary damages.

    Board decisions are not typically subject to judicial review. See Utah Code Ann. § 77-27-5(3)(2003); Walker v. State, 902 P.2d 148, 150 (Utah Ct. App. 1995). The Board has exclusive authority to determine the number of years to be served. See Preece v. House, 886 P.2d 508, 512 (Utah 1994).

    Judicial review, when appropriate, is limited to two instances. First, to insure that due process is not violated, by examining the process by which the Board undertakes its sentencing function. See Walker, 902 P.2d at 150. Second, to determine whether an abuse of discretion has occurred. See id. A determination by the Board as to the length of actual incarceration imposed, as long as it falls within the applicable indeterminate range, absent unusual circumstances, cannot be arbitrary or capricious and, therefore, is not an abuse of discretion. See Preece, 886 P.2d at 512.

    With respect to due process considerations, the State correctly points out that the Board considered several aggravating factors and found no mitigating factors. The aggravating factors included: the type of criminal activity that resulted in the prison term, which consisted of sodomizing his son and cutting him with a knife when his sexual demands were resisted; a history of similar criminal conduct resulting in three prison commitments; exhibiting of cruel and depraved behavior; vulnerability of the victim; Edwards's abuse of a position of trust; multiple victims as well as multiple incidents; lack of remorse; the premeditation and lack of rehabilitative progress. Edwards has not demonstrated that the Board violated its own process in its determination or acted unreasonably.

    Edwards contends that he was unable to complete a sex offender program because inmates are required to have less than three years remaining before their parole date in order to participate in the program, yet Edwards cannot get a parole date until he participates in treatment. He claims that this situation effectively denies him the ability to obtain parole. The trial court, however, determined that the record shows that Edwards has failed to take advantage of opportunities afforded him to otherwise qualify himself for parole. For example, a letter contained in the record from a caseworker to the Board, dated January 16, 1998, indicates that Edwards had been denied sex offender treatment based on his expressed unwillingness to move housing within the prison. The State correctly points out that Edwards does not have a federal constitutional right to a rehabilitative program. See Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976).

    With respect to the issue of whether an abuse of discretion occurred, the term imposed was within, albeit at the outer limit, of the applicable indeterminate range. While the Board exceeded the guidelines in imposing the sentence, unlike the case of Preece, 886 P.2d at 512, in which the Utah Supreme Court determined that the Board had violated due process by failing to provide a written explanation of why the sentence was imposed, in this case the Board did provide a written explanation supporting its decision. Therefore, the process by which the Board undertook its sentencing function did not violate due process.

    Edwards also requests monetary damages. Even if he had prevailed on his petition, money damages are not available in a habeas corpus action. See Wolf v. McDonnell, 418 U.S. 539 (1974).

    The dismissal of Edwards petition for extraordinary relief is affirmed.

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Judith M. Billings,

Presiding Judge

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Russell W. Bench,

Associate Presiding Judge

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Gregory K. Orme, Judge