Blanke v. Utah Bd. of Pardons & Parole

• Decision Date: 24 June 2020
• Docket Number: No. 20160766,20160766
• Citation: 467 P.3d 850
• Parties: Kevin BLANKE, Petitioner, v. UTAH BOARD OF PARDONS AND PAROLE, Respondent.
• Court: Utah Supreme Court

467 P.3d 850

Kevin BLANKE, Petitioner,

v.UTAH BOARD OF PARDONS AND PAROLE, Respondent.

No. 20160766

Supreme Court of Utah.

Heard October 7, 2019

Filed June 24, 2020

On Certiorari to the Utah Court of Appeals

Justice Himonas, opinion of the Court:

INTRODUCTION

¶1 The Utah Board of Pardons and Parole declined to set a parole date for Kevin Blanke, a Utah prison inmate, because he refused to participate in the prison sex offender treatment program. Blanke is serving a prison sentence for his convictions of attempted child kidnapping and kidnapping. Because of the attempted child kidnapping conviction, Blanke is considered a sex offender under Utah's sex offender registration statute. In addition, at the time he was sentenced for kidnapping, Blanke admitted via his presentence report to having sexual intercourse with a fifteen-year-old, conduct that would also place him, if he were convicted of it, on the sex offender registry. The question presented is whether under these circumstances the Parole Board must afford an inmate the due process protections required in Neese v. Utah Board of Pardons and Parole , 2017 UT 89, 416 P.3d 663. We hold that Neese does not require it to do so.

BACKGROUND

¶2 Blanke is currently incarcerated for two crimes. He pleaded guilty in 2002 to attempted child kidnapping and received a prison sentence of three years to life. At that time, any person convicted of attempted child kidnapping had to register as a sex offender. See infra ¶ 28 n.13. One year later, Blanke pleaded guilty to kidnapping and received a prison sentence of one to fifteen years for that crime. The two convictions arose from separate incidents—one in 2002 and the other in 1997. The presentence reports in the two cases reflect the following factual bases for the charges.¹

¶3 The attempted child kidnapping charge arose from events in 2002 involving a child, Elisabeth.² Blanke had come across Elisabeth and her older sister one day while the two were playing near a park. Elisabeth crossed the street to talk to Blanke after he called her over, and then she returned to her older sister, saying Blanke had offered to pay them if they would go with him. Her sister declined the offer and returned home, but Elisabeth left with Blanke. Blanke subsequently drove Elisabeth in his truck to get ice cream. When she got scared and told him that she wanted to go home, he dropped her off at the park. She had been gone for about an hour and a half. Upon her return, Elisabeth was taken to the hospital. An examination revealed no physical appearance of abuse, and Elisabeth did not claim that she was physically harmed.

¶4 The kidnapping charge sprang out of an incident in 1997 involving a fifteen-year-old, Michelle. The presentence report says that Blanke—forty-three years old at the time—had given Michelle and her friend a ride and smoked marijuana with them. Soon after her friend left, Michelle decided to leave as well. But Blanke followed her, handed her a threatening note, and demanded that she get in his truck. He then pushed her inside, telling her that he had a gun. Blanke subsequently drove Michelle to another location and allegedly "raped and sodomized her."³ Blanke described the incident in his statement in the presentence report: "I got aroused and we had sex. I did not know that she was underage until three days later when I talked to the police."

¶5 At the sentencing hearing for his kidnapping conviction, Blanke's counsel objected to the presentence report's statement that Blanke had "raped and sodomized" Michelle. But counsel did not object to anything else in the presentence report, including the statement that Blanke had sex with a fifteen-year-old.

After Blanke's counsel raised that objection, Michelle testified. She said Blanke had "terrorized" and "raped" her. When she finished, the court asked Blanke if he had anything to say. He simply replied, "That's all right, your Honor. I'll just be sentenced and just do my time."

¶6 Blanke's original parole-grant hearing took place in 2006. There, the hearing officer asked Blanke whether he had had "sexual intercourse with" and "basically raped" Michelle. Blanke replied that yes, he had.⁴ Then, Elisabeth's father testified, alleging that Blanke had kidnapped Elisabeth with the intent to sexually abuse her, which Blanke denied.

¶7 After Blanke's first hearing, the Parole Board did not set a release date and instead scheduled a rehearing. That rehearing, which is the most relevant hearing to this appeal, took place in 2012. The hearing officer first asked Blanke about the incident with Elisabeth, noting her father's 2006 testimony. Before moving on, the hearing officer asked if Blanke wanted to convey any other information to the Parole Board, and he said, "No sir." And then, just like at the first hearing, the hearing officer inquired about the rape accusation. This time, however, Blanke responded that he did not want to answer that question. He said that he was "never charged" with and "never pled guilty" to rape and that he "believe[d] that the board [had] all the information necessary to ... [m]ake a decision on that case." He also said that he did not believe he was a sex offender. Then, Blanke was allowed to say anything else he wanted to about the kidnapping case; he said that he had nothing to add.

¶8 Concluding the hearing, the hearing officer said that he did not know what the Parole Board's decision on Blanke's parole eligibility would be. He then said that he personally "wouldn't consider any kind of release" until Blanke had been through sex offender treatment. He believed that Blanke "kidnapped [Elisabeth] with the intent of sexually abusing her" and "brutally raped [Michelle]."

¶9 After the 2012 hearing, Blanke was denied a release date yet again. The Parole Board instead scheduled a rehearing for 2032 and ordered a sex offender treatment memorandum. In its written decision, the Parole Board cited some aggravating and mitigating factors but contained no other explanation for its refusal to set a parole date.

¶10 Almost three years later, Blanke filed a petition for extraordinary relief under rule 65B(d) of the Utah Rules of Civil Procedure. Among other things, he alleged that the Parole Board had violated due process by conditioning his parole on completion of sex offender treatment even though he had not committed a sex offense. The district court granted summary judgment for the Parole Board on all claims, holding that the Parole Board did not violate Blanke's due process rights by requiring a sex offender treatment memorandum to be filed before the next hearing. The court of appeals affirmed, and Blanke filed a petition for certiorari with this court.

¶11 We provisionally granted Blanke's petition, pending our decision in Neese v. Utah Board of Pardons and Parole , 2017 UT 89, 416 P.3d 663. After we issued our decision in Neese ,⁵ we lifted the provisional qualifier and presented the following issue for review: whether the Parole Board must comply with the due process standards set out in Neese under the circumstances of this case.⁶

¶12 We have jurisdiction under Utah Code section 78A-3-102(3)(a).

STANDARD OF REVIEW

¶13 On certiorari, we review the court of appeals’ decision and not that of the district court. State v. Harker , 2010 UT 56, ¶ 8, 240 P.3d 780. And we review the decision of the court of appeals for correctness, without any deference to its conclusions of law. Id. Of course, in determining whether the court of appeals erred, we must be cognizant of the procedural backdrop against which the issue arose. Here, the district court granted the Parole Board's motion for summary judgment on Blanke's due process claim. The ultimate due process question is an issue of law to be reviewed for correctness. Neese v. Utah Bd. of Pardons & Parole , 2017 UT 89, ¶ 21, 416 P.3d 663. Typically, "[w]hen a due process question requires ‘application of facts in the record to the due process standard, we incorporate a clearly erroneous standard for the necessary subsidiary factual determinations.’ " Id. (quoting Salt Lake City Corp. v. Jordan River Restoration Network , 2012 UT 84, ¶ 47, 299 P.3d 990 ). On summary judgment, however, "all factual inferences must be drawn in favor of the nonmoving party as a matter of law, and we therefore review an award of summary judgment on a due process issue only for correctness." Id. (citing Rupp v. Moffo , 2015 UT 71, ¶ 5, 358 P.3d 1060 ).

¶14 Assuming, however, Blanke could establish that the district court erred in granting summary judgment to the Parole Board on his due process claim, he would be only "eligible for, but not entitled to, extraordinary relief." State v. Barrett , 2005 UT 88, ¶ 24, 127 P.3d 682 ; UTAH R. CIV. P. 65B(d)(2)(D) ("Appropriate relief may be granted ... where the Board of Pardons and Parole has exceeded its jurisdiction or failed to perform an act required by constitutional or statutory law." (emphasis added)). And when deciding whether to grant the relief sought in a rule 65B(d) petition, a court "will consider multiple factors" such as "the egregiousness of the alleged error, the significance of the legal issue presented by the petition, [and] the severity of the consequences occasioned by the alleged error." Barrett , 2005 UT 88, ¶ 24, 127 P.3d 682.

ANALYSIS

¶15 Blanke was convicted of a crime that requires his registration as a sex offender and admitted via his presentence report to having sex with a fifteen-year-old. Still, he contends that the Parole Board must afford him the additional procedural protections discussed in Neese v. Utah Board of Pardons and Parole , 2017 UT 89, 416 P.3d 663,⁷ before it can determine that he is a sex offender and condition his parole on sex offender treatment.

¶16 In support of his contention, Blanke argues that attempted child kidnapping is not a sex offense. He also urges that, even if attempted child kidnapping is a sex offense, the Parole Board did not base its decision on the...