Padilla v. Board of Pardons and Parole , 817 Utah Adv. Rep. 58 ( 2016 )

2016 UT App 150THE UTAH COURT OF APPEALS
PABLO VINCENTE PADILLA,
Appellant,
v.
BOARD OF PARDONS AND PAROLE,
Appellee.
Per Curiam Decision
No. 20160400-CA
Filed July 21, 2016
Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 150908865
Pablo Vicente Padilla, Appellant Pro Se
Sean D. Reyes and Amanda N. Montague, Attorneys
for Appellee
Before JUDGES GREGORY K. ORME, J. FREDERIC VOROS JR., and
STEPHEN L. ROTH.
PER CURIAM:
¶1 Pablo Vincente Padilla appeals a summary judgment on
his petition seeking extraordinary relief under rule 65B(d) of the
Utah Rules of Civil Procedure from a decision of the Utah Board
of Pardons and Parole. This case is before the court on a sua
sponte motion for summary disposition. We affirm.
¶2 Following his 2008 convictions, based upon guilty pleas to
child abuse/neglect and child abuse involving physical injury,
both second degree felonies, the district court sentenced Padilla
to concurrent prison terms of one-to-fifteen years. Padilla was
released on parole in September 2014. In March 2015, the Board
initiated parole revocation proceedings. At an April 15, 2015
hearing before the Board, Padilla appeared with counsel. He
Padilla v. Board of Pardons and Parole
acknowledged that he had received and reviewed the packet of
materials provided by the Board, which contained all records
that the Board had received since its last hearing on his case.
Padilla also confirmed that he had conferred with counsel and
was ready to proceed. After being advised of the rights that he
would be giving up if he admitted to violating the terms of his
parole, Padilla admitted that he violated his parole agreement by
failing to complete the halfway house sex offender program.
Based upon his admission, the Board revoked Padilla’s parole.
The Board then determined that Padilla would not be granted
another opportunity for parole and would remain incarcerated
for the entire fifteen-year term of his sentence. The Board also
stated that it would consider an earlier release if Padilla entered
and showed progress in therapy or completed the specific
programming for his case.
¶3 In his petition, Padilla challenged the Board’s decisions to
revoke his parole and require him to serve his entire sentence.
Padilla claimed that the Board improperly considered
information on charges that were dismissed or amended in
connection with the plea agreement in his criminal case. Padilla
also claimed that the Board abused its authority by keeping him
in prison for the entire fifteen-year term of his sentence. The
post-conviction court granted summary judgment to the Board,
and Padilla appeals that decision.
¶4 To the extent that Padilla claims that the Board abused its
authority when it denied him another opportunity for parole
and instead required him to complete his fifteen-year sentence,
he fails to raise a substantial question for review. See Kelly v.
Board of Pardons, 2012 UT App 279, ¶ 3, 288 P.3d 39 (per curiam).
The Board has statutory authority to determine whether an
inmate will be released on parole and any parole conditions. See
Utah Code Ann. § 77-27-5(1)(a) (LexisNexis 2012). “[W]hile the
courts have the power to sentence, the Board has been given the
power to pardon and parole. These are two separate and distinct
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powers, neither of which invades the province of the other.”
Padilla v. Board of Pardons & Parole, 947 P.2d 664, 669 (Utah 1997).
“[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 setting or denying parole, “the Board merely exercises
its constitutional authority to commute or terminate an
indeterminate sentence that, but for the Board’s discretion,
would run until the maximum period is reached.” Padilla, 947
P.2d at 669. Furthermore, the Board’s decisions “are final and are
not subject to judicial review.” Utah Code Ann. § 77-27-5(3).
Courts do not “sit as a panel of review on the result, absent some
other constitutional claim.” Lancaster v. Board of Pardons, 869 P.2d
945, 947 (Utah 1994).
¶5 Because Padilla admitted that he violated the terms of his
parole, the district court correctly determined that the Board was
legally entitled to revoke Padilla’s parole. To the extent that
Padilla argues that the Board improperly required him to engage
in sex offender programs while on parole, he waived that claim
when he admitted the allegation that he violated parole by
failing to satisfy that parole condition. In this case, the Board
exercised its discretion in deciding not to grant Padilla another
opportunity for parole and requiring him to serve the maximum
prison term. That decision did not exceed the Board’s statutory
authority.
¶6 Padilla next claims that the Board improperly considered
information about charges that were dismissed or amended in
connection with his guilty plea and is keeping him incarcerated
only because Board members believe he committed other crimes.
However, as previously noted, judicial review is not available to
consider the Board’s substantive decision to require Padilla to
complete his sentence. Furthermore, it is within the Board’s
discretion to rely on any factors known, or later adduced, and to
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determine the weight afforded such factors in making its parole
decisions. Northern v. Barnes, 825 P.2d 696, 699 (Utah Ct. App.
1992). The Board also persuasively argues that any guidance it
provided to Padilla about what factors might persuade it to
reconsider its decision, such as completion of therapy, did not
result in a violation of his constitutional rights.
¶7 Affirmed.
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