May v. Bigelow

2018 UT App 61

THE UTAH COURT OF APPEALS

RONALD A. MAY,
Appellant,
v.
ALFRED C. BIGELOW, BOARD OF PARDONS AND PAROLE,
AND STATE OF UTAH,
Appellees.

Per Curiam Opinion
No. 20170322-CA
Filed April 12, 2018

Third District Court, Salt Lake Department
The Honorable Mark S. Kouris
No. 160901267

Ronald A. May, Appellant Pro Se
Sean D. Reyes, Erin T. Middleton, and Amanda N.
Montague, Attorneys for Appellees

Before JUDGES GREGORY K. ORME, KATE A. TOOMEY, and
DIANA HAGEN.

PER CURIAM:

¶1 Ronald A. May appeals the district court’s order granting
summary judgment against him and dismissing his petition for
extraordinary relief. In his petition, May sought to require the
Board of Pardons and Parole (the Board) to either immediately
parole him or provide him with a new parole hearing. 1

1. Alfred C. Bigelow, as warden of the prison, was named as a
respondent. However, all claims raised by May directly involved
the Board’s actions, not Bigelow’s or the prison’s.
May v. Bigelow

¶2 When reviewing an appeal from an order dismissing a
petition for extraordinary relief, we accord no deference to the
district court’s conclusions of law but instead review them for
correctness. See Monson v. Carver, 928 P.2d 1017, 1022–23 (Utah
1996). Because the decision underlying the petition for
extraordinary relief involves a parole decision of the Board, the
decision itself is “final and [is] not subject to judicial review.”
Utah Code Ann. § 77-27-5(3) (LexisNexis 2017). Judicial review
of such decisions is limited only to “the fairness of the process by
which the Board undertakes its sentencing function” and does
not include review of the result. Lancaster v. Board of Pardons, 869
P.2d 945, 947 (Utah 1994) (emphasis omitted).

¶3 May first asserts that the Board violated his due process
rights when it revoked his parole without obtaining and/or
disclosing a toxicology report detailing the results of May’s
blood test following his arrest for driving under the influence. 2
Contrary to May’s arguments, the toxicology report was
immaterial to the Board’s ultimate decision because May
admitted to using heroin on multiple occasions. May’s
admissions to heroin use were sufficient to support the Board’s
decision to revoke his parole. Further, May cites no authority for
the proposition that the Board had a duty to obtain the
toxicology report when (1) there is no evidence that the Board
was ever aware of the report; (2) the report was ordered by the
investigating police agency, not the Board; and (3) the report was
not used to support May’s DUI conviction, since May pled guilty
to a DUI offense prior to the completion of the toxicology report.

2. There is no evidence that prior to May’s hearing the Board
was aware that the toxicology report existed. The report was not
included in the packet of material provided to May nor was any
reference made to it in the Board’s decision. Further, it was not
the Board that requested the toxicology report. The report was
ordered by the police agency investigating May’s DUI.

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Under these circumstances, the district court did not err in
dismissing May’s claims concerning whether the Board had a
duty to obtain and disclose the toxicology report.

¶4 As an extension of this argument, May also contends that
the Board should have modified its previous parole decision
after the toxicology report was discovered, which resulted in his
prior DUI offense being reduced to a careless driving conviction.
Once again, however, the parole revocation was based primarily
on May’s admitted use of heroin, not the DUI conviction (even
though May had pled guilty to such offense). May’s admission
to the use of heroin fully supported the Board’s parole
revocation.

¶5 May next argues that his counsel was ineffective in
advising May to admit to parole violations without first
investigating the results of the toxicology report. May failed to
adequately preserve this issue for review. See State v. Schwenke,
2009 UT App 345, ¶ 19, 222 P.3d 768 (stating that “’to preserve
an issue for appeal the issue must be presented to the trial court
in such a way that the trial court has an opportunity to rule on
that issue’” (citation omitted)). May’s petition for extraordinary
relief fails to set forth any claim of ineffective assistance of
counsel. Further, his response to the Board’s motion for
summary judgment also failed to discuss any potential claim for
ineffective assistance of counsel. As a result, the district court’s
order dismissing the petition for extraordinary relief made no
mention of any such claim. While May may have made passing
references in his arguments to possible disagreements with
counsel, he never presented the argument to the court as a basis
to support his petition for extraordinary relief. Accordingly,
because the issue was not adequately preserved for review, we
will not address the issue for the first time on appeal. See State v.
Pecht, 2002 UT 41, ¶ 18, 48 P.3d 931 (“Generally, a defendant
who fails to bring an issue before the trial court is barred from
asserting it on appeal.”).

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May v. Bigelow

¶6 Finally, May argues that the district court erred in
determining that the Board did not abuse its discretion in
ordering that May would not be eligible for a parole rehearing
until 2022. May raises two statutory arguments to support this
claim. However, May did not raise these arguments in the
district court. Because these arguments were not raised in the
district court, we decline to address them for the first time on
appeal. See id.

¶7 In regard to May’s broader argument concerning whether
the Board abused its discretion in setting the rehearing date in
2022, nothing in the record demonstrates that the district court
erred in dismissing this claim. Specifically, judicial review of the
Board’s decisions is limited to determining whether the Board
has violated his rights to procedural due process and does not
include authority for judicial review of the reasonableness of the
Board’s decision. See, e.g., Preece v. House, 886 P.2d 508, 512 (Utah
1994); Renn v. Utah State Board of Pardons, 862 P.2d 1378, 1381
(Utah Ct. App. 1993). Therefore, judicial review “is limited to the
‘process by which the Board undertakes its sentencing function’
and the courts do not ‘sit as a panel of review on the result.’”
Preece, 886 P.2d at 512 (quoting Lancaster v. Utah Board of Pardons,
869 P.2d 945, 947 (Utah 1994)). Further, “so 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.” Id.

¶8 Here, May was originally sentenced to two indeterminate
life sentences. Thus, because the 2022 rehearing date fell within
May’s original sentence, the decision cannot be arbitrary and
capricious absent unusual circumstances. The district court
concluded, and we agree, that there were no such unusual
circumstances here. May admitted to violating the terms of his
parole by using heroin. Further, prior to this parole revocation,
the Board had previously revoked and reinstated May’s parole

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May v. Bigelow

four times. In terms of the Board’s process, May was provided a
copy of all the materials the Board relied upon in making its
decision, and he was afforded an opportunity to defend himself
at the revocation hearing with the aid of counsel. Nothing in the
record demonstrates any unusual circumstances that would
permit review of the Board’s decision itself. Accordingly, May
has failed to demonstrate that the district court erred in
dismissing his claim regarding the Board’s decision to set his
next hearing date in 2022.

¶9 Affirmed.

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