Miller v. State , 309 Utah Adv. Rep. 8 ( 1997 )

OPINION

GREENWOOD, Judge:

Petitioner Matthew Wayne Miller seeks review of the trial court’s dismissal of his petition for an extraordinary writ, filed pursuant to Rule 65B of the Utah Rules of Civil ■ Procedure. In that petition, petitioner challenged the legality of his no contest plea, his sentencing, and the Board of Pardon’s order of restitution. We affirm in all respects except as to the procedures followed in establishing restitution.

BACKGROUND

The detailed facts underlying petitioner’s crime are not relevant to this appeal. Briefly, petitioner bit off a man’s nose during a fight. Petitioner was subsequently charged with one count of mayhem and aggravated assault. On May 14, 1992, the parties appeared before the trial court to discuss a proposed plea agreement, pursuant to Rule 11(h)(2) of the Utah Rules of Criminal Procedure. In exchange for petitioner’s plea of no contest to the mayhem charge, the prosecutor agreed to recommend no prison time and no restitution. The trial court questioned petitioner at length regarding the voluntariness of his plea and about whether petitioner fully understood the possible results of his no contest plea. Additionally, petitioner signed an affidavit which stated that he fully understood the rights he was relinquishing by pleading no contest. The trial court inquired whether petitioner understood the contents of the affidavit before accepting it. The affidavit was then incorporated as a part of petitioner’s plea and entered into the record.

After petitioner pleaded no contest to mayhem, the court continued sentencing in order to allow Adult Probation and Parole (AP & P) to complete a presentence report. On June 22,1992, petitioner’s sentencing hearing was reconvened. Having reviewed the pre-sentence report, which detañed petitioner’s past convictions for assaultive behavior, the trial court rejected the prosecutor’s sentencing recommendation for petitioner, noting: “The prosecution clearly missed the boat in this case.” Accordingly, the trial court sentenced petitioner to an indeterminate term of one to fifteen years in the Utah State Prison and ordered him to pay a $10,000 fine. The trial court did not order petitioner to pay any restitution, consistent with the State’s recommendation.

Petitioner took no direct appeal from his sentence. However, he did file a Rule 65B petition challenging his sentence. See Utah R. Civ. P. 65B. The trial court denied this petition on its merits. Although petitioner initiañy sought appellate review of the denial of his petition, he voluntarily withdrew the appeal. Petitioner then appeared before the Board of Pardons (Board), which set a parole date and ordered petitioner to pay restitution in the amount of $10,683 as a condition of his parole. Petitioner then filed his current petition, challenging both the propriety of his plea and sentence, as well as the Board’s restitution order. The trial court dismissed petitioner’s second petition on October 28, 1994, and petitioner now appeals that dismissal.

Petitioner challenges the legality of his plea and sentence and also disputes the Board’s power to order restitution when the trial court did not order restitution. In addition, he chañenges procedures foUowed by the Board in his parole proceedings.

On appeal from dismissal of a petition for extraordinary relief, we review the trial court’s conclusions of law supporting the dismissal for correctness. Neel v. Holden, 886 P.2d 1097, 1100 (Utah 1994). Furthermore, in reviewing Board actions, we review the “ ‘fairness of the process by which the Board undertakes its sentencing functions!;] ... we do not sit as a panel of review on the result.’ ” Monson v. Carver, 928 P.2d 1017, 1023 (Utah 1996) (quoting Neel, 886 P.2d at 1100) (additional quotation marks and citation omitted)

ANALYSIS

I. Claims Involving Petitioner’s Plea & Sentence

Rule 65B requires that petitioner “set forth all claims that the petitioner has in relation to the legality of the commitment” in a single petition and bars petitioner from raising new claims in subsequent petitions except for “good cause shown.” Utah R. Civ. P. 65B(b)(3). A conviction may also be subject to collateral attack through an extraordinary writ if a petitioner can demonstrate “unusual circumstances” justifying such a reconsideration. See Hurst v. Cook, 777 P.2d 1029,1037 (Utah 1989). However, previously adjudicated claims or claims which should have been raised in prior petitions should be summarily denied if good cause or unusual circumstances cannot be shown. Id.

Petitioner previously raised, or should have raised, all of the claims regarding his plea and sentence in his first petition, but argues either good cause or unusual circumstances justify this court considering these issues. Having reviewed the record and the parties’ briefs, we agree with the State that petitioner has not shown either good cause or unusual circumstances such as would warrant a reconsideration of his plea and sentence. Accordingly, we affirm the trial court’s dismissal of his petition to the extent it collaterally attacks petitioner’s plea and sentencing.

II. Claims Involving Petitioner’s Parole Hearing

As the State concedes, it would have been impossible for petitioner to have challenged the Board’s parole and restitution determinations in his first petition because his hearing before the Board had not yet occurred. Accordingly, petitioner properly challenged the Board’s action through a Petition for Extraordinary Relief pursuant to Rule 65B, and the trial court erred in concluding those claims were procedurally barred because they had not been raised in his first petition. See Renn v. Utah State Bd. of Pardons, 862 P.2d 1378, 1381 (Utah App.1993) (“[T]he scope of appellate review of habeas corpus petitions challenging the Board’s decisions ‘is limited to a review of procedural due process and does not extend authority for judicial review of the “reasonableness of the parole decision,” which is not subject to judicial review under Utah Code Ann. § 77-27-5(3).’ ” (citations omitted)), ajfd, 904 P.2d 677 (Utah 1995).

Petitioner raises numerous constitutional arguments in support of his theory that the Board exceeded its power by ordering him to pay restitution when the trial court did not order any restitution.¹ This issue, however, has been definitively answered by the Utah Supreme Court in Mon-son. Although the Monson court did not precisely describe what action, if any, the sentencing trial court took in regard to restitution, Monson ⅛ language accords the Board broad authority to order restitution as a condition of parole under both the Utah Constitution and statutory provisions. Id. at 1024-25. In Monson, the supreme court further held that restitution imposed sua sponte by the Board does not increase an inmate’s punishment in violation of prohibitions against ex post facto laws because the inmate may reject parole and serve out the original sentence and because the sentencing court could have imposed restitution in the first instance. Id. at 1026. Therefore, petitioner’s constitutional challenges to the Board’s power to impose restitution as a condition of his parole fails.

Petitioner, however, also challenges the procedures by which the Board established its restitution order, claiming the Board did not follow required statutory procedures or provide him a proper hearing. We agree. The Board is required to “follow both the substantive standards of section 76-8-201 and its procedural requirements.” Id. at 1028. The Board is therefore required to consider the same factors and provide a similar record of its rationale as is the trial court. Id. As in Monson, the record before us does not indicate the Board complied with these requirements. We therefore remand this issue to the trial court “for the entry of an order directing the Board to comply with the proper statutory procedure.” Id. at 1031.

Petitioner also claims he was unconstitutionally denied the assistance of counsel at his parole hearing. Again, Monson controls, holding that there is no constitutional right to counsel at parole grant hearings. Id. at 1030. Furthermore, petitioner has failed to demonstrate how the presence of would have affected the proceedings. Id.

CONCLUSION

We affirm the dismissal of petitioner’s petition insofar as it relates to his original plea and sentencing and to the Board’s authority to impose an order of restitution as a condition of parole. We remand on the limited issues of the procedures followed by the Board in determining the amount and justification for the restitution order.

BENCH, J., concurs.

1 . We cannot agree with the conclusion of our colleague, Judge Davis, in his concurring opinion, that the sentencing court did not affirmatively decide to not impose restitution. Although we have only the record of the proceedings on the petition for an extraordinary writ before us, that record includes excerpts from the trial proceedings, which clearly indicate that the judge accepted the prosecution's recommendation that no restitution be imposed. Furthermore, as observed in the majority opinion of Stilling v. Utah Board of Pardons, 933 P.2d 391, 393 (Utah App.1997), when we lack a full record regarding this issue, "we must assume the trial court considered restitution in this case and determined it was inappropriate.”