McCammon v. Board of Pardons and Parole

2016 UT App 119THE UTAH COURT OF APPEALS
BRET MCCAMMON,
Appellant,
v.
BOARD OF PARDONS AND PAROLE,
Appellee.
Per Curiam Decision
No. 20160185-CA
Filed June 3, 2016
Third District Court, Salt Lake Department
The Honorable Todd M. Shaughnessy
No. 150905928
Bret McCammon, Appellant Pro Se
Sean D. Reyes and Brent A. Burnett, Attorneys
for Appellee
Before JUDGES GREGORY K. ORME, J. FREDERIC VOROS JR., and
STEPHEN L. ROTH.
PER CURIAM:
¶1 Bret McCammon appeals a summary judgment on his
post-conviction petition seeking 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 1998 convictions on two counts of first degree
felony sodomy on a child, the district court sentenced
McCammon to consecutive prison terms of ten years to life. 1
1. When McCammon was sentenced, Utah Code section
76-5-403.1(2) provided that sodomy on a child was a first degree
(continued…)
McCammon v. Board of Pardons and Parole
In his post-conviction petition, McCammon claimed that the
Board exceeded its authority by denying him a parole date
and requiring him to “expire” his potential life sentences.
McCammon claimed that at his sentencing hearing, the
sentencing judge said, “Mr. McCammon, you will be an old
man of 62 when you are let out of prison.” McCammon alleged
that this statement set his maximum imprisonment at twenty
years and that by denying him a parole date and requiring him
to serve a life sentence, the Board exceeded its authority.
McCammon also claimed that the Board improperly used
information that had been obtained during the presentence
investigation in his criminal case and therefore violated double
jeopardy guarantees. Finally, McCammon claimed that the
Board denied his attempts to show the Board his good character.
The post-conviction court granted summary judgment to the
Board on these claims, and McCammon appealed.
¶3 To the extent that McCammon again asserts that the
Board exceeded its authority when it required him to expire his
life sentences, 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). Even assuming the district court made the quoted
statement at sentencing, that statement simply referenced the
minimum mandatory prison term that McCammon was required
to serve before he would be eligible to be considered for release
on parole. The district court’s statement could not alter the
Board’s statutory authority to determine both whether an inmate
will be released on parole and any parole conditions. See Utah
Code Ann. § 77-27-5(1)(a) (LexisNexis 2012).
(…continued)
felony punishable by a mandatory prison term of six, ten, or
fifteen years “and which may be for life.” Utah Code Ann.
§ 76-5-403.1 (Lexis 1999).
20160185-CA 2 2016 UT App 119McCammon v. Board of Pardons and Parole
¶4 “[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 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. In this case, the Board exercised its discretion in
deciding not to grant McCammon parole and requiring him to
serve the maximum term of life in prison. That decision did not
exceed the Board’s statutory authority. 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 McCammon next contends that the Board improperly
used information contained in the presentence investigation
report (PSI) because this information had been used at
sentencing. He claims that the Board’s consideration of this
material violated double jeopardy. The Board’s consideration of
the PSI and other information from the criminal case record was
appropriate. Consideration of this material also did not violate
double jeopardy because McCammon was not thereby subjected
to multiple punishments. See Monson v. Carver, 928 P.2d 1017,
1026 (Utah 1996) (stating that a parole proceeding did not violate
the prohibition against double jeopardy because it did not
expose a defendant to multiple punishments for the same crime).
To the extent that McCammon claims that the PSI contained
inaccurate information, he must have raised any inaccuracies at
sentencing to allow them to be resolved by the sentencing court.
20160185-CA 3 2016 UT App 119McCammon v. Board of Pardons and Parole
See Utah Code Ann. § 77-18-1(6)(a) (LexisNexis Supp. 2014). “If a
party fails to challenge the accuracy of the [PSI] at the time of
sentencing, that matter shall be considered to be waived.” Id.
§ 77-18-1(6)(b).
¶6 The post-conviction court also correctly ruled that the
Board did not deprive McCammon of due process.
[T]wo due process requirements must be met in
parole grant hearings. First, an inmate must receive
adequate notice to prepare for a parole hearing.
Second, an inmate must receive copies or a
summary of the information in the Board’s file
upon which the board will rely in deciding
whether to grant parole.
Peterson v. Board of Pardons, 931 P.2d 147, 150 (Utah Ct. App.
1997) (citation omitted). McCammon did not claim in his post-
conviction petition that the Board violated these due process
requirements. However, McCammon claims for the first time on
appeal that he was not provided with a copy of a letter to the
Board from his ex-wife. This claim was not presented to the
district court for determination. Therefore, it will not be
considered on appeal. See 438 Main Street v. Easy Street, Inc., 2004
UT 72, ¶ 51, 99 P.3d 801 (“[I]n order to preserve an issue for
appeal[,} the issue must be presented to the trial court in such a
way that the trial court has an opportunity to rule on that issue.”
(alternations in original) (citation and internal quotation marks
omitted)). In addition, McCammon did not file a response to the
Board’s summary judgment motion to dispute the Board’s
representation that the due process requirements were satisfied.
Finally, McCammon’s claim that he was not allowed access to a
volunteer who might have provided a favorable character
reference does not rise to the level of a due process violation.
¶7 Affirmed.
20160185-CA 4 2016 UT App 119