Malek v. Friel

Malek v. Friel

IN THE UTAH COURT OF APPEALS
 

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Louis Malek,

Petitioner and Appellant,

v.

Clint Friel, et al.,

Respondents and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20031017-CA
 

F I L E D
(July 9, 2004)
 

2004 UT App 237

 

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Third District, Salt Lake Department

The Honorable Tyrone E. Medley

Attorneys: Louis Malek, Draper, Appellant Pro Se

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

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Before Judges Davis, Jackson, and Thorne.

PER CURIAM:

Louis Malek appeals from the trial court's summary judgment dismissing his petition for relief under rule 65B of the Utah Rules of Civil Procedure. Among other things, Malek alleges that the Utah Board of Pardons and Parole (Board) has exceeded its jurisdiction and violated the separation of powers, that he is being confined under an illegal sentence, and that his rights were violated by being recommitted to prison and by not being provided with counsel at his parole revocation hearing.

In 1983, while on parole for a manslaughter conviction, Malek committed new offenses. He pleaded guilty to attempted murder and aggravated robbery, both first degree felonies. He was sentenced to two concurrent terms of five years to life, to run consecutively to his manslaughter sentence. Multiple firearms enhancements were also imposed.

Malek petitioned for relief based on the multiple enhancements and ineffective assistance of counsel. The district court granted relief regarding the sentence, and resentenced Malek without the multiple enhancements. The court signed the corrected sentence in 1992.

In 2001, while on parole, Malek was arrested on new charges. The Board issued a "board warrant" returning Malek to prison. Malek pleaded guilty to State misdemeanor charges, and eventually pleaded guilty to federal firearms charges. After the resolution of the new charges, the Board held a parole revocation hearing. The Board revoked Malek's parole in November of 2002, and set a rehearing date for 2009.

Malek asserts the Board violated the separation of powers and exceeded its authority in various ways. His arguments are without merit. The Board has express statutory authority to issue board warrants to retake parolees into Board custody. See Utah Code Ann. § 77-27-11(3) (2003). Malek relies on a third district case finding the warrants to be beyond the Board's authority. However, that case has been reversed by Jones v. Utah Bd. of Pardons and Parole, 2004 UT 53. In Jones, the Utah Supreme Court held that the issuance of warrants to retake parolees is constitutional. See id. "[T]he Board's power to issue retaking warrants falls well within the ambit of its legitimate plenary powers to 'grant parole.'" Id. at ¶35.

Malek also argues the Board lacked jurisdiction to reimprison and resentence him after a parole violation. He asserts a new conviction is necessary to provide the Board with authority. Again he ignores the express statutory authority of the Board. The Board "may revoke the parole of any person who is found to have violated any condition of his parole." Utah Code Ann. § 77-27-11(1). If a parolee violated the conditions of parole, the Board may order the parolee to be "imprisoned again as determined by the Board, not to exceed the maximum term." Id. § 77-27-11(6). Under the plain language of the statute, the Board retains jurisdiction over parolees, and may reimprison them for parole violations, even without a new conviction. Furthermore, Malek pleaded guilty to both state misdemeanor and federal felony charges, thereby supplying a new conviction establishing his own parole violation. Also, it is well established that the Board has the authority to determine the actual number of years served in Utah's indeterminate sentencing scheme, and does not infringe on the judiciary in doing so. See Padilla v. Utah Bd. of Pardons, 947 P.2d 664, 669 (Utah 1997).

Malek argues that the Board lacks the constitutional authority to retake parolees because such authority is not expressly given in the Utah Constitution. However, the power to parole inherently includes the power to take back a grant of parole if the conditions fail. "Necessarily enveloped in the power to 'grant parole' is the authority to administer and supervise parole, revoking it as needed." Jones, 2004 UT 53 at ¶35. "The enforcement leverage that supports the parole conditions derives from the authority to return the parolee to prison to serve out the balance of his sentence if he fails to abide by the rules." Morrissey v. Brewer, 408 U.S. 471, 478-79 (1972), 92 S. Ct. 2593, 2599. Moreover, the Utah Constitution provides power to the Board to grant parole "upon other conditions as provided by statute" and which is subject to "regulations as provided by statute." Utah Const. art. VII, § 12 (2)(a). The Utah Code provides the Board express authority to revoke parole and reincarcerate parolees who violate the conditions of parole. See Utah Code Ann. § 77-27-11.

Malek also argues that his sentence is illegal. First he argues that his 1983 sentencing and commitment order was unsigned, meaning he should be released. However, even if the initial sentence was unsigned, the sentence was corrected with the entry of the 1992 order correcting Malek's sentence, therefore mooting any initial error.

Second, Malek argues that he should serve no more than thirty years under Utah Code section 76-3-401 (1990). In 1990, the relevant sections provided:

If a court imposes consecutive sentences, the aggregate maximum of all sentences imposed may not exceed 30 years imprisonment. However, this limitation does not apply if an offense for which the defendant is sentenced authorizes the death penalty or a maximum sentence of life imprisonment.

. . . .

In determining the effect of consecutive sentences and the manner in which they shall be served, the Board of Pardons shall treat the defendant as though he has been committed for a single term that shall consist of the aggregate of the validly imposed prison terms as follows: (a) if the aggregate maximum term exceeds the thirty year limitation the maximum sentence is considered to be thirty years.

Utah Code Ann. § 76-3-401(4),(6) (1990).

Malek argues that because the life sentence exception did not appear in the section directing the Board how to enforce consecutive sentences, the Board may not require Malek to serve more than thirty years. However, by the plain language and reading of the statute as a whole, the thirty-year limitation on imprisonment for consecutive sentences does not apply to a sentence that authorizes life imprisonment. The thirty-year limitation "does not apply if any of the sentences imposed that are part of the consecutive sentence chain authorize the death penalty or life imprisonment." State v. Deli, 861 P.2d 431, 434 (Utah 1993) (emphasis added).

Malek next argues that the Board subjected him to double jeopardy in requiring him to serve additional years of prison for the federal firearms charge. One of the purposes of the prohibition against double jeopardy is to avoid the imposition of multiple punishments for the same offense. See Monson v. Carver, 928 P.2d 1017, 1026 (Utah 1996). However, "a parole proceeding is not a criminal proceeding that subjects a prisoner to jeopardy, and guarantees against double jeopardy are not applicable." Hatch v. DeLand, 790 P.2d 49, 51 (Utah Ct. App. 1990), overruled on other grounds by Labrum v. Utah Bd. of Pardons, 870 P.2d 902 (Utah 1993). Malek has not been subject to multiple punishments for the same offense. He has been reincarcerated on a parole violation, with the result that he is serving additional time on the underlying convictions of attempted murder and aggravated robbery.

Double jeopardy does not preclude the Board from finding a parole violation based on specific conduct even where the same conduct provides the basis for a separate criminal proceeding. See Petersen v. Utah Bd. of Pardons, 907 P.2d 1148, 1154 (Utah 1995). "A parole revocation proceeding is a civil proceeding that is entirely independent of any related criminal proceeding, even if the criminal charges are based on the same facts." Id. The criminal conviction of a federal felony provided conclusive proof of a parole violation, which resulted in the Board reincarcerating Malek pursuant to its statutory authority. The Board did not violate double jeopardy principles in revoking Malek's parole based on new criminal convictions.

Malek also asserts that his rights were violated because the State failed to provide him counsel to which he was entitled at his parole revocation hearing. Parole revocation is a civil proceeding, and there is no constitutional right to counsel. See Neel v. Holden, 886 P.2d 1097, 1103-04 (Utah 1994). Utah, however, provides an entitlement to counsel pursuant to statute, which is expressly limited by the statutory language. See Utah Code Ann. § 77-27-11(5) (2003). A parolee "shall" be provided the opportunity to be represented by counsel at a parole revocation hearing only when the parolee is either mentally incompetent or is pleading not guilty. Id. Malek pleaded guilty to both the misdemeanor drug possession charge and the federal felony gun possession charge, the basis for his parole revocation. Based on his guilty pleas, he was not entitled to counsel at his parole revocation hearing.

Malek has raised other issues, which we find to be without merit. We do not address them further here. See Beehive Brick Co. v. Robinson Brick Co., 780 P.2d 827, 833 (Utah Ct. App. 1989) (noting the principle established in both civil and criminal cases that the court "need not analyze and address in writing each and every argument").(1)

The Board was within its authority in retaking Malek into custody and requiring him to serve additional time due to his violation of parole. Additionally, the Board did not violate double jeopardy nor due process when it recommitted Malek and failed to provide counsel at his parole revocation hearing. Finally, the Board may require Malek to serve more than a total of thirty years in prison because of the underlying sentence which authorizes up to life in prison.

Accordingly, the dismissal of Malek's petition is affirmed.

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James Z. Davis, Judge

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Norman H. Jackson, Judge

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William A. Thorne Jr., Judge

1. Two outstanding motions are resolved by this decision. Malek's motion to reconsider the court's order striking portions of his reply brief and supplemental citations is denied. The State's motion to strike Malek's second citation to supplemental authorities is granted.