Maguire v. Bigelow

2013 UT App 221_________________________________________________________
THE UTAH COURT OF APPEALS
BRIAN MAGUIRE,
Petitioner and Appellant,
v.
ALFRED BIGELOW, BOARD OF PARDONS & PAROLE, AND STATE OF
UTAH,
Respondents and Appellees.
Per Curiam Decision
No. 20130597‐CA
Filed September 6, 2013
Third District, Salt Lake Department
The Honorable Royal I. Hansen
No. 110918782
Brian Maguire, Appellant Pro Se
John E. Swallow and Bridget K. Romano, Attorneys
for Appellees
Before JUDGES DAVIS, THORNE, and MCHUGH.
PER CURIAM:
¶1 Brian Maguire appeals the district court’s dismissal of his
petition for extraordinary relief. This matter is before the court on
its own motion for summary disposition based on the lack of a
substantial question for review.
¶2 Maguire asserted ten claims in his petition in the district
court. Although phrased somewhat differently, all but one claim
challenged the Board of Pardons and Parole’s (the Board)
determination that Maguire would serve a natural life sentence, the
Maguire v. Bigelow
maximum term of Maguire’s ten‐year‐to‐life sentence.1 The Board
has the authority to determine if, when, and under what conditions
an inmate may be released on parole. See Utah Code Ann. § 77‐27‐
5(1)(a) (LexisNexis 2012). Decisions of the Board regarding paroles
“are final and are not subject to judicial review.” Id. § 77‐27‐5(3).
Judicial review is limited only 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). Although Maguire argues that the Board
inappropriately set his term for natural life, “so 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). Accordingly, the
district court did not err in dismissing those claims.
1. The claims in Maguire’s petition challenged the information
before the Board, the legality of the sentence, and the Board’s
decision to impose a natural life sentence. Maguire acknowledges
that he objected to what he considered to be inaccurate information
at his hearing before the Board but argues that his position was not
given sufficient weight in the Board’s decision. The weight given
to the evidence is within the Board’s discretion in making its final
determination and is not subject to judicial review. Lancaster v.
Board of Pardons, 869 P.2d 945, 947 (Utah 1994). Furthermore,
Maguire received the due process to which he was entitled because
he had the information prior to the hearing and was able to address
the matters to the Board. See Neel v. Holden, 886 P.2d 1097, 1101
(Utah 1994); Labrum v. Board of Pardons, 870 P.2d 902, 909 (Utah
1993).
To the extent that Maguire argues that his sentences should
combine to be no more than thirty years, the argument is without
merit. The statute limiting consecutive sentences to a maximum
term of thirty years does not apply where the maximum of an
indeterminate sentence may be life in prison. Utah Code Ann. § 76‐
3‐401 (LexisNexis 2012).
20130597‐CA 2 2013 UT App 221Maguire v. Bigelow
¶3 Maguire presented one procedural due process claim,
contending that his rights were violated because he did not receive
the 1992 Presentence Investigation Report (PSI) prior to the hearing
before the Board. Maguire asserted in his petition that the PSI was
the basis for some information in an Institutional Progress Report
(IPR) that was in the Board’s file. Maguire appeared at the hearing
and objected to some information in the IPR, as was his right.
However, the PSI was not in the Board file and was not considered
by the Board. Accordingly, there was no requirement for the Board
to produce the PSI and the district court properly dismissed this
claim. See Peterson v. Board of Pardons, 931 P.2d 147, 152 (Utah Ct.
App. 1997).
¶4 Affirmed.
20130597‐CA 3 2013 UT App 221