Todd v. Board of Pardons and Parole

2016 UT App 236
THE UTAH COURT OF APPEALS
S HAYNE E. TODD,
Appellant,
v.
BOARD OF P ARDONS AND PAROLE,
Appellee.
Per Curiam Decision
No. 20160013-CA
Filed December 8, 2016
Third District Court, Salt Lake Department
The Honorable Su Chon
No. 150901233
Shayne E. Todd, Appellant Pro Se
Sean D. Reyes, Stanford E. Purser, and Amanda N.
Montague, Attorneys for Appellee
Before JUDGES GREGORY K. O RME, M ICHELE M. C HRISTIANSEN , and
JILL M. POHLMAN .
PER CURIAM:
¶1 	Shayne E. Todd appeals the district court’s order granting
the 	Board 	of 	Pardons 	and 	Parole’s 	motion 	for 	summary
judgment 	resulting 	in 	the 	dismissal 	of 	his 	petition 	for
extraordinary relief. We affirm.
¶2 	When reviewing an appeal from an order dismissing a
petition for extraordinary relief, we accord no deference to the
lower court’s conclusions of law but review them for correctness.
See 	Monson 	v. 	Carver, 	928 	P.2d 	1017, 	1022–23 	(Utah 	1996).
However, generally decisions of the Board of Pardons and
Parole regarding paroles “are final and are not subject to judicial
review.” 	Utah 	Code 	Ann. 	§ 	77–27–5(3) 	(LexisNexis 	2012).
Judicial review is limited only to “the fairness of the process by
which the Board undertakes its sentencing function,” and does

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20160013-CA 	2 	2016 UT App 236
not include review of the result. Lancaster v. Board of Pardons, 869
P.2d 945, 947 (Utah 1994).
¶3 	Todd makes several arguments on appeal concerning the
Board’s decision several years ago to not hold a parole hearing
until 2029. He previously made some of these arguments when
he filed a motion in his criminal case to correct an illegal
sentence. See State v. Todd, 2013 UT App 231, 312 P.3d 936. Todd
repackaged those arguments, with some minor differences, in
his 	petition 	for 	extraordinary 	relief, 	but 	the 	crux 	of 	his
arguments remain the same.
¶4 	First, Todd argues that Utah’s indeterminate sentencing
scheme is unconstitutional for several reasons. However, this
sentencing structure has repeatedly been upheld by the courts as
constitutional. See State v. Telford, 2002 UT 51, ¶ 3, 48 P.3d 228
(per curiam) (stating that there was “no basis for [the court] to
depart 	from 	established 	precedent” 	and 	that 	indeterminate
sentencing was indeed constitutional); Padilla v. Board of Pardons,
947 	P.2d 	664, 	669 	(Utah 	1997) 	(rejecting 	arguments 	that
sentencing scheme violates due process or separation of powers
clause); 	Monson 	v. 	Carver, 	928 	P.2d 	1017, 	1023 	(Utah 	1996)
(rejecting 	claim 	that 	Utah’s 	sentencing 	scheme 	violated 	the
Constitution 	because 	it 	was 	mentally 	cruel 	to 	prisoners).
Accordingly, we reject Todd’s arguments that the indeterminate
sentencing scheme is unconstitutional.
¶5 	Todd next asserts that the Sentencing Guidelines created a
liberty 	interest, 	of 	which 	he 	was 	deprived 	by 	the 	Board’s
decision to not schedule his next parole hearing until 2029. It is
well established that the guidelines do not have the effect of law
and are not binding on the Board, as such, they create no liberty
interest or expectation of release. See Monson, 928 P.2d at 1023.
The guidelines are merely estimates that reflect what may be a
typical term. The Board retains full discretion to determine
incarceration 	terms 	on 	an 	individual 	basis 	considering 	the
unique facts of each case. Labrum v. Board of Pardons, 870 P.2d
902, 909 (Utah 1993). Thus, the district court correctly concluded

Todd v. Board of Pardons and Parole
20160013-CA 	3 	2016 UT App 236
that Todd was not entitled to relief on his arguments concerning
whether the sentencing guidelines created a protected liberty
interest.
¶6 	Third, Todd claims that the rationale sheet the Board used
to memorialize its decision concerning when to schedule Todd’s
parole review date was insufficient. Specifically, he seems to
argue that the preprinted rationale sheets, on which the Board
checks off the “mitigating” and “aggravating” factors it deems
relevant in making the parole determination, did not provide a
detailed enough explanation of the Board's actions to satisfy due
process. 	However, 	the 	Utah 	Supreme 	Court 	has previously
determined that the rationale sheets used by the Board to explain
its decisions are adequate and satisfy due process. See Monson,
928 P.2d at 1031 (“While perhaps not a perfect explanation of the
Board’s 	rationale, 	this 	document 	[i.e., 	a 	rationale 	sheet]
nonetheless satisfies the Board’s own requirement that it provide
a written explanation of the reasons for its decision.”). Thus,
Todd is not entitled to relief on this claim.
¶7 	Finally, 	Todd 	complains 	about 	the 	Board’s 	internal
operating procedures and how they may affect his due process
rights. However, it does not appear that Todd raised these issues
either in his original petition for extraordinary relief or in his
amended 	petition. 	Accordingly, 	the 	issue 	is 	not 	properly
preserved for appeal. See Holman v. Callister, Duncan & Nebeker,
905 P.2d 895, 899 (Utah Ct. App. 1995) (stating that a litigant’s
failure to raise an issue with the district court fails to preserve
the claim for appeal).
¶8 	Affirmed.1
1. To the extent that Todd’s brief could be construed to set forth
any further arguments not specifically addressed above, Todd
has failed to demonstrate such arguments entitle him to the relief
requested.