Kimbal v. Department of Corrections

2015 UT App 139
THE UTAH COURT OF APPEALS
PAUL K IMBAL,
Appellant,
v.
DEPARTMENT OF C ORRECTIONS AND
BOARD OF P ARDONS AND PAROLE,
Appellees.
Per Curiam Decision
No. 20150205-CA
Filed June 4, 2015
Third District Court, Salt Lake Department
The Honorable Su Chon
No. 140900446
Paul Kimbal, Appellant Pro Se
Sean D. Reyes and Nancy L. Kemp, Attorneys
for Appellees
Before JUDGES GREGORY K. O RME, JAMES Z. D AVIS, and
JOHN A. PEARCE.
PER CURIAM:
¶1 	Paul Kimbal appeals the grant of summary judgment
denying his petition for extraordinary relief filed under rule 65B
of the Utah Rules of Civil Procedure. We affirm.
¶2 	Kimbal 	essentially 	claims 	that 	the 	Board 	of 	Pardons
(the Board) abused its discretion by requiring him to “expire” his
life 	sentence 	and 	that 	the 	Department 	of 	Corrections 	(the
Department) 	violated 	due 	process 	by 	imposing 	a 	severe
management override. The severe management override placed
him at privilege level 2, which prevented him from completing
the 	Sex 	Offender 	Treatment 	Program 	(SOTP). 	Kimbal 	also
complains that he was denied due process in his August 2012

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20150205-CA 	2 	2015 UT App 139
rehearing before the Board because he received copies of some
materials provided by the victim or victim’s advocate only after
they were submitted at the hearing.
¶3 	This 	case 	presents 	circumstances 	similar 	to 	those
reviewed by this court in Harris v. Friel, 2006 UT App 161U (per
curiam). Harris, like Kimbal, was unable to participate in SOTP
due to his privilege level. Harris claimed that the completion of
SOTP was a condition of his sentence and that he therefore had a
liberty interest in SOTP. Id. para. 3. This court determined that
because “Utah’s sentencing statutes do not mandate treatment as
a condition of parole for sex offenders” and because Harris “still
might 	be 	considered 	for 	early 	release 	if 	he 	successfully
completed treatment,” the facts of his case did not give rise to a
liberty 	interest 	in 	SOTP 	that 	would 	require 	a 	due 	process
analysis. Id. para. 4. Similarly, Kimbal may be reclassified as a
level 3 offender, become eligible for SOTP and, upon successful
completion, seek reconsideration by the Board.1 Accordingly, the
Department did not violate Kimbal’s due process rights by
keeping him at level 2. Furthermore, the placement and retention
of 	a 	severe 	management 	override 	was 	supported 	by 	valid
considerations that included not only a gun smuggling incident
and related federal conviction, but the nature of Kimbal’s crime
and his disciplinary record in prison.
¶4 	Decisions of the Board regarding parole “are final and are
not subject to judicial review.” Utah Code Ann. § 77-27-5(3)
(LexisNexis 2012). Generally, judicial review is limited to only
1. Kimbal states in his reply to the summary disposition motion
that he was released from maximum security in April 2015 but
has been denied admission to SOTP because he is not “flagged”
by the Board for treatment. These facts are presented for the first
time on appeal, were not before the Board or the district court,
and are not considered by this court in reaching this decision.

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20150205-CA 	3 	2015 UT App 139
reviewing 	“the 	fairness 	of 	the 	process 	by 	which 	the 	Board
undertakes its sentencing function” and does not include a
review of the result. Lancaster v. Board of Pardons, 869 P.2d 945,
947 (Utah 1994). “[S]o long as the period of incarceration decided
upon 	by 	the 	[Board] 	falls 	within 	an 	inmate’s 	applicable
indeterminate range, . . . then that decision, absent unusual
circumstances, cannot be arbitrary and capricious.” Preece v.
House, 886 P.2d 508, 512 (Utah 1994). In this case, the Board did
not abuse its discretion in determining that Kimbal’s term would
be the maximum indeterminate sentence.
¶5 	Similarly, there is no genuine issue of fact supporting the
claim that Kimbal was denied procedural due process in the
August 2012 proceedings before the Board. “[T]wo due process
requirements must be met in parole grant hearings.” Peterson v.
Board of Pardons, 931 P.2d 147, 150 (Utah Ct. App. 1997). “[A]n
inmate must receive adequate notice to prepare for a parole
hearing” 	and 	“must 	receive 	copies 	or 	a 	summary 	of 	the
information in the Board’s file upon which the Board will rely in
deciding whether to grant parole.” Id. The latter requirement
“requires that the inmate know what information the Board will
be considering at the hearing and that the inmate know soon
enough in advance to have a reasonable opportunity to prepare
responses and a rebuttal of inaccuracies.” Id. (internal citations
and quotation marks omitted).
¶6 	Kimbal 	received 	notice 	of 	his 	hearings, 	copies 	or
summaries of the information in his file, and the rationale for the
decisions made. In support of the summary judgment motion,
the Board stated that the only information that had not been
included in the prehearing packet provided before the August
2012 hearing was information provided by the victim at the
hearing, copies of which were provided to Kimbal at the hearing.
The materials included (1) written versions of the live statements
made by the victim and her sons at the hearing, (2) letters from
the victim’s friends and family, (3) a supplemental police report

Kimbal v. Department of Corrections
20150205-CA 	4 	2015 UT App 139
dated August 6, 1994, (4) a letter the victim wrote to the Board in
1997, and (5) a medical report from 1994, discussing the victim’s
injuries. The Board stated that while the packet provided by the
victim contained some new material, the information itself was
largely duplicative. Kimbal did not request a continuance or
additional time to respond to the victim’s material. In addition,
Kimbal wrote a letter to the Board’s hearing officer after the
August 2012 hearing disputing some of the victim’s statements
regarding the offense, asking that a letter from a county attorney
be disregarded, and requesting a more legible copy of the
victim’s hospital report. The hearing officer acknowledged that
Kimbal’s letter was received, and it was transmitted to the Board
for consideration with other materials.
¶7 	“[A]ccuracy and legitimacy are the two critical functions
implicated by” the requirement to provide copies or a summary
of the information that will be considered by the Board. Peterson,
931 P.2d at 151. Thus, “an inmate must be given an opportunity
to point out inaccuracies in the materials and information upon
which the Board relies.” Id. Because Kimbal was given the
opportunity to correct any errors contained in his file, including
the opportunity to respond to the victim’s statements at the
hearing, and an opportunity to communicate his disagreement
to the Board by letter, the procedure the Board followed satisfied
due process. See id. The district court correctly concluded that
Kimbal was not denied procedural due process by the Board.
¶8 	Accordingly, we affirm.