Alvillar v. Board of Pardons and Parole

1. Judge Carolyn B. McHugh participated in and voted on this case
as a member of the Utah Court of Appeals. She resigned from the
court before this decision issued.
2014 UT App 61
_________________________________________________________
THE UTAH COURT OF APPEALS
GUIDO ALVILLAR,
Petitioner and Appellant,
v.
BOARD OF PARDONS AND PAROLE,
Respondent and Appellee.
Per Curiam Decision
No. 20131041-CA
Filed March 20, 2014
Third District Court, Salt Lake Department
The Honorable L.A. Dever
No. 130902176
Guido Alvillar, Appellant Pro Se
Sean D. Reyes, Amanda N. Montague, and
Bridget K. Romano, Attorneys for Appellee
Before JUDGES GREGORY K. ORME, CAROLYN B. MCHUGH, and
STEPHEN L. ROTH.1
PER CURIAM:
¶1 Petitioner Guido Alvillar appeals the district court’s order
granting the Board of Pardons and Parole’s (the Board) motion for
summary judgment, which denied Alvillar’s petition seeking
extraordinary relief. This case is before the court on a sua sponte
motion for summary disposition.

Alvillar v. Board of Pardons
20131041-CA 2 2014 UT App 61
¶2 In April 2012, Alvillar was sentenced to three concurrent
indeterminate terms of zero to five years in prison on his
convictions of one count of unlawful acquisition, possession, or
transfer of a financial transaction card and two counts of theft by
deception, all third degree felonies. In July 2012, Alvillar appeared
before a hearing officer of the Board for his original parole grant
hearing. On August 2, 2012, the Board entered its decision that
Alvillar would not be granted parole and should serve the
maximum five-year sentence. Alvillar challenged the Board’s
decision in a petition seeking extraordinary relief. The district court
granted summary judgment in favor of the Board. Alvillar appeals.
¶3 On appeal, Alvillar claims that (1) he was resentenced by the
Board without a full hearing, (2) the Board denied him due process
by relying on documents that were not disclosed to him, and (3) the
Board improperly relied upon his personal characteristics in
reaching its decision. While the district court imposes an
indeterminate term prescribed for an offense, the Board has the
authority to determine the actual number of years to be served. See
Preece v. House, 886 P.2d 508, 512 (Utah 1994). The Board’s decisions
on parole “are final and are not subject to judicial review.” See Utah
Code Ann. § 77-27-5(3) (LexisNexis 2012) (stating that decisions on
“paroles, pardons, commutations or terminations of sentence,
restitution, or remissions of fines or forfeitures are final and are not
subject to judicial review”). Judicial review is therefore limited 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).
¶4 Alvillar appeared before a hearing officer for his original
parole grant hearing, after which the hearing officer made a
recommendation to the Board. See Utah Admin. Code R671-301-
1(A) (allowing the Board’s designee to preside over hearings).
Based upon alleged comments by the hearing officer to the effect
that she did not “see recommending over the guidelines,” Alvillar
claimed that the Board’s subsequent decision that he should serve
his full term of five years in prison constituted “resentencing”

Alvillar v. Board of Pardons
20131041-CA 3 2014 UT App 61
without a hearing before the full Board. However, it was the
district court that sentenced Alvillar to serve concurrent terms of
zero to five years. The Board’s decision that Alvillar would serve
the maximum five-year term was not a resentencing. Instead, it
reflected the Board’s determination, through the exercise of its
statutory authority and discretion, of the time that Alvillar would
actually serve on his prison sentence. Because the term set by the
Board was within the applicable indeterminate range for his
convictions, “that decision, absent unusual circumstances, cannot
be arbitrary and capricious.” Monson v. Carver, 928 P.2d 1017, 1023
(Utah 1996). The district court also correctly rejected Alvillar’s
related claim that the Board was required to apply the sentencing
matrix guideline of twenty months. The sentencing guidelines used
by the Board “do not have the force and effect of law” and “any
expectation of release derived from the guidelines is at best
tenuous.” Preece, 886 P.2d at 511 (citation & internal quotation
marks omitted).
¶5 Alvillar next claims that the district court erred in rejecting
his claim that the Board denied him due process by failing to
disclose his entire file. Labrum v. Board of Pardons, 870 P.2d 902
(Utah 1993) requires that an 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 rebuttal of inaccuracies.” Id. at 909.
However, “[w]here confidentiality of sources is absolutely
required, the Board may of course take suitable steps to withhold
the identity of sources and prepare summaries of the information
for the inmate’s use rather than providing copies of the actual
documents.” Id. at 910. In support of its motion for summary
judgment, the Board provided an affidavit acknowledging that
Alvillar’s file contained some documents that were withheld
because of safety and security concerns and that Alvillar was
provided a summary of each of those documents. The affidavit also
stated that the hearing officer’s recommendation to the entire
Board—which was obviously prepared after the hearing—was not
provided to Alvillar based upon Utah Code section 63G-2-305 of

Alvillar v. Board of Pardons
20131041-CA 4 2014 UT App 61
the Government Records and Access Management Act. See Utah
Code Ann. § 63G-2-305(34) (LexisNexis Supp. 2013) (stating that
memoranda prepared by staff for use by a member of the Board of
Pardons and Parole are protected). Alvillar’s claim before this court
is simply that he was not provided all documents in his file.
Contrary to his assertion, this claim does not in itself establish a
material issue of fact precluding summary judgment. The Board
described the basis for withholding some documents and the fact
that summaries of sensitive materials were provided to Alvillar.
However, Alvillar did not establish that, given those undisputed
facts, he could demonstrate that the procedure for disclosure used
by the Board constitutes a denial of procedural due process.
¶6 Alvillar’s final claim before the district court was that the
Board improperly relied upon his personal characteristics in
making its parole decision. This claim was correctly rejected
because the Board may consider and weigh any factors that it
deems relevant to its determination of whether or not an inmate
will be afforded parole, which is “precisely the kind of issue [that
is] not subject to judicial review.” Northern v. Barnes, 825 P.2d 696,
699 (Utah Ct. App. 1992).
¶7 Accordingly, we affirm.