Stewart v. Board of Pardons and Parole

2015 UT App 246

THE UTAH COURT OF APPEALS

CALVIN PAUL STEWART,
Appellant,
v.
BOARD OF PARDONS AND PAROLE,
Appellee.

Per Curiam Decision
No. 20150540-CA
Filed September 24, 2015

Third District Court, Salt Lake Department
The Honorable Richard D. McKelvie
No. 140907544

Calvin Paul Stewart, Appellant Pro Se
Sean D. Reyes and Brent A. Burnett, Attorneys
for Appellee

Before JUDGES STEPHEN L. ROTH, MICHELE M. CHRISTIANSEN, and
KATE A. TOOMEY.

PER CURIAM:

¶1 Calvin Paul Stewart appeals the denial of his petition for
extraordinary relief related to a January 2014 hearing before the
Utah Board of Pardons and Parole (the Board). Stewart’s
petition, filed under rule 65B of the Utah Rules of Civil
Procedure, claimed that he was denied due process because the
Board did not give him copies of evidence that was to be used at
his January 16, 2014 parole hearing until just prior to the hearing;
that he is imprisoned for his debts because he cannot pay
restitution; that the statute of limitations for restitution expired,
making the debt invalid; that he was denied equal protection
because others involved in the same criminal activity were not
imprisoned or required to pay restitution; and that the Board has
not demonstrated that its decision to incarcerate Stewart for
Stewart v. Board of Pardons and Parole

twenty years was valid or necessary. Pursuant to rule 65B(b)(5),
the district court dismissed as frivolous all but the claim that he
was denied procedural due process in the January 16, 2014
hearing. The district court later granted the Board’s motion for
summary judgment on that claim. This appeal is before the court
on a sua sponte motion for summary disposition.

¶2 As a preliminary matter, Stewart claims that the district
court erred in dismissing the petition against Warden Alfred
Bigelow because the warden is his physical custodian and must
be named as a party. Because Stewart’s petition was filed under
rule 65B(d) and challenges only the actions of the Board, Warden
Bigelow was properly dismissed.

¶3 The district court correctly dismissed all but the
procedural due process claim related to the January 16, 2014
hearing as frivolous. Stewart was sentenced to serve prison
terms at the Utah State Prison following his 2003 convictions on
twenty-five felony counts in two cases from two different Utah
counties, in which he was required to pay restitution to his
victims in excess of six million dollars. He claimed in his petition
that the requirement that he pay restitution constitutes
imprisonment for debt and also claimed that the statute of
limitations on that debt has run. Citing Monson v. Carver, 928
P.2d 1017, 1027 (Utah 1996), the district court correctly ruled that
because restitution is “’a civil remedy whose purpose is entirely
remedial,’ it is not properly characterized as a ‘debt’ for which
[Stewart] was imprisoned, but is rather a consequence of [the]
original convictions.” Furthermore, restitution judgments
“expire only upon payment in full, which includes applicable
interest, collection fees, and attorney fees.” Utah Code Ann. § 77-
38a-401(4) (LexisNexis 2012); see also State v. Flygare, 2015 UT
App 188, ¶ 5. The district court also properly dismissed
Stewart’s claims that his convictions violated the Equal
Protection Clause of the United States Constitution and the
due process clause of the Utah Constitution because he was

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sentenced to pay restitution and serve a term in prison while
others involved in the same criminal activity were treated
differently. The district court correctly concluded that these
claims constituted a challenge to Stewart’s criminal convictions
that cannot be pursued in a petition challenging the Board’s
actions and filed under rule 65B. See Utah R. Civ. P. 65B(a)
(“Except for instances governed by Rule 65C, the procedures in
this rule shall govern proceedings on all petitions for
extraordinary relief.”); see also id. R. 65C(a) (“This rule governs
proceedings in all petitions for post-conviction relief filed under
the Post-Conviction Remedies Act, Utah Code Title 78B, Chapter
9.”). Finally, the district court correctly dismissed as frivolous
the claim that Stewart’s sentence was unconstitutionally
excessive. See Preece v. House, 886 P.2d 508, 512 (Utah 1994) (“[S]o
long as the period of incarceration decided upon by the board of
pardons falls within an inmate’s applicable indeterminate
range, . . . then that decision, absent unusual circumstances,
cannot be arbitrary and capricious.”).

¶4 The district court granted summary judgment on the
remaining claim that Stewart was denied due process at the
January 16, 2014 hearing. The Board provided the district court
with a transcript of the entire hearing as well as an affidavit from
the hearing officer. The Board demonstrated that on December
27, 2013, Stewart received a packet containing all of the
documents the Board had received since Stewart’s last parole
hearing. On January 10, 2014, the Board received a letter
containing documents, including court pleadings, from two of
the victims of Stewart’s criminal acts. Pursuant to rule R671-303-
1(1) of the Utah Administrative Code, the hearing officer
brought these additional documents to the January 16, 2014
hearing. See Utah Admin. Code R671-303-1(1). At the hearing,
Stewart was sworn in and asked if he had received a copy of the
information packet. Stewart replied that he had. When the
hearing officer asked Stewart, “[Did you have] a chance to look
at that?” he replied that he had. During the hearing, Stewart did

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not state that he had not timely received documents or that he
did not have an adequate opportunity to review them, nor did
he challenge any documents received at that hearing as
containing hearsay, and he did not indicate that he had any
additional questions. The hearing officer provided an affidavit
indicating that it was his usual practice to arrive at the hearing
location at least thirty minutes prior to the start of hearings and
that, depending upon when Stewart’s hearing was scheduled, he
would have had a minimum of thirty minutes to review the
additional documents provided by the hearing officer and could
have had up to three hours to review them. Stewart would not
have received any additional documents other than what was
provided prior to or at the hearing.

¶5 The district court concluded that Stewart had not shown
that there were any disputed material facts that would show he
was denied due process during his January 16, 2014 hearing.
Even though Stewart received some documents immediately
prior to the hearing, he did not request additional time to review
them and affirmatively acknowledged to the hearing officer that
he was “ready to get started.” At the conclusion of the hearing,
Stewart stated that he did not have any additional questions.
Relying upon Peterson v. Utah Board of Pardons, 931 P.2d 147
(Utah Ct. App. 1997), the district court concluded that Stewart
had not met his burden to inform the hearing officer if he
required any additional time to review the documents or
information provided to him, and that Stewart did not challenge
the proceedings at that time. See id. at 152.

¶6 The Board must satisfy two due process requirements in
conducting parole hearings. First, “an inmate must receive
adequate notice to prepare for a parole hearing.” Id. at 150.
Second, the inmate must “receive copies or a summary of the
information in the Board’s file upon which the Board will rely”
and “know soon enough in advance to have a reasonable
opportunity to prepare responses and rebuttal of inaccuracies.”

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Id. However, in Peterson, we concluded that the Board was not
required to continue a hearing after the inmate “expressly stated
that he did not want or need more time.” Id. at 152. “To shift the
burden from the inmate to the Board . . . jeopardizes the Board’s
neutrality because it would require the Board to insist on
continuances despite an inmate’s insistence to the contrary.” Id.
Stewart did not ask for a continuance to review the additional
materials provided to him at the hearing. Instead, he stated that
he was ready to get started and thereafter fully participated in
the hearing. Based upon the undisputed facts, Stewart’s due
process rights were not violated.

¶7 Affirmed.

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