Lake v. Newcomb, 29028.

• Decision Date: 06 May 2004
• Docket Number: No. 29028.,29028.
• Parties: Michael A. LAKE, Petitioner-Appellant, v. Russell NEWCOMB, Camille Tillinghast, Jay Nelson, Daniel Sharp, Joe Klauser, Olivia Craven, et al., Respondent.
• Court: Idaho Court of Appeals

90 P.3d 1272

140 Idaho 190

Michael A. LAKE, Petitioner-Appellant, v. Russell NEWCOMB, Camille Tillinghast, Jay Nelson, Daniel Sharp, Joe Klauser, Olivia Craven, et al., Respondent.

No. 29028.

Court of Appeals of Idaho.

May 6, 2004.

Michael A. Lake, Boise, pro se appellant.

Hon. Lawrence G. Wasden, Attorney General; Timothy R. McNeese, Deputy Attorney General, Boise, for respondent.

LANSING, Chief Judge.

This is an appeal from the magistrate court's denial of a petition for a writ of habeas corpus. The petitioner, Michael A. Lake, was sentenced in 1984 to four consecutive indeterminate sentences of imprisonment. A fifth consecutive sentence was later imposed. The principal issue presented by his appeal is whether the Idaho Commission of Pardons and Parole (the Commission) violated the law by failing to grant Lake a parole hearing to consider his eligibility for institutional parole at any time during the service of his first two sentences and, if so, whether his claim for that violation is moot because the first two sentences have now been fully served. We reverse the magistrate's determination that this issue is moot, and we remand for further proceedings on this claim.

I. BACKGROUND

In April 1984, Lake was convicted of four counts of lewd conduct with a minor child. The trial court imposed a ten-year sentence of imprisonment for each count, with the sentences to be served consecutively. As provided under the sentencing statutes then in effect, all of the sentences were indeterminate. The district court initially suspended the sentences and placed Lake on probation, but in 1985, Lake was found to have violated the terms of his probation. The probation was therefore revoked and Lake began serving his sentences. In 1986, Lake was convicted of escape, for which he received a fifth indeterminate sentence of three years, to be served consecutively to the lewd conduct sentences.

Lake filed an appeal from the judgment of conviction but subsequently withdrew the appeal. In 1990, he filed an action for post-conviction relief which generated two appeals. Lake v. State, 124 Idaho 259, 858 P.2d 798 (Ct.App.1993); Lake v. State, 126 Idaho 333, 882 P.2d 988 (Ct.App.1994). Lake also filed at least two Idaho Criminal Rule 35 motions alleging that his sentences were illegal, but the record before us does not disclose the disposition of those motions.

The present action was initiated in May 2000 when Lake filed a petition for a writ of habeas corpus. Lake raised numerous claims, the principal one for purposes of this appeal being a claim that the Commission¹ improperly denied Lake any consideration for institutional parole during the course of his first two ten-year sentences.² The Commission responded with a motion to dismiss pursuant to Idaho Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which habeas corpus relief could be granted. The magistrate court granted the State's motion with respect to all of Lake's claims except the one concerning the denial of institutional parole on the first two sentences. As to that claim, the magistrate ordered the parties to submit additional authority and documentation related to Lake's parole eligibility. The magistrate thereafter dismissed that remaining claim on the basis that it was moot because the first two sentences had been served in full.

Lake appealed to the district court. Although the district court expressed concern that the Commission's apparent policy of refusing to consider Lake for institutional parole on his two initial sentences ignored both an attorney general's opinion and decisions of this Court, the district court nevertheless affirmed the magistrate's determination that the claim is moot because the sentences in question had been served and Lake could no longer be paroled from them.

Lake now further appeals. He argues that the lower courts incorrectly dismissed his claim regarding the denial of parole hearings. He also presents miscellaneous additional issues concerning denial of access to documents in his file maintained by the Commission, denial of credits on his sentences for time served, and a contention that cumulatively, his sentences violate the Eighth Amendment guarantee against cruel and unusual punishment.

II. ANALYSIS

In an appeal from a decision of the district court made in its appellate capacity, we examine the record before the magistrate and review the magistrate's judgment. Although we give due regard to the district court's appellate opinion, our review is of the magistrate's decision. In re Henry, 127 Idaho 349, 350, 900 P.2d 1360, 1361 (1995); Martin v. Spalding, 133 Idaho 469, 471, 988 P.2d 695, 697 (Ct.App.1998).

Where, as here, the trial court considered matters outside of the pleadings in addressing an I.R.C.P. 12(b)(6) motion to dismiss, the motion is treated as one for summary judgment. I.R.C.P. 12(b)(6); Merrifield v. Arave, 128 Idaho 306, 307, 310, 912 P.2d 674, 675, 678 (Ct.App.1996). Summary judgment is permissible only when the pleadings and evidence before the trial court show that there is no genuine issue of any material fact and that the moving party is entitled to judgment as a matter of law. I.R.C.P. 56(c); Martin, 133 Idaho at 471, 988 P.2d at 697.

A. Denial of Consideration for Institutional Parole

We first consider Lake's claim that he was unlawfully denied hearings to consider his suitability for institutional parole on his first two sentences.³ Examination of this claim requires application of the sentencing laws and parole procedures that were in effect when Lake was convicted. In 1984, when Lake was sentenced, most prison sentences were indeterminate, meaning that the trial court imposed no minimum term that must be served before parole eligibility. See I.C. § 20-223, amended by 1986 Idaho Sess. Laws ch. 232, § 5. The actual period of confinement under these indeterminate sentences was determined by the Commission's parole decisions. See id. For serious felonies, including lewd and lascivious conduct, parole eligibility commenced when the defendant had served five years or one-third of the sentence, whichever was least. Id. See also State v. Toohill, 103 Idaho 565, 569, 650 P.2d 707, 711 (Ct.App.1982)

.

The sentencing system changed effective February 1, 1987, with the adoption of the "Unified Sentencing Act," I.C. § 19-2513, which required that a sentencing court impose a minimum period of confinement that must be served before an inmate would be parole eligible. The Unified Sentencing Act did not affect the sentences or parole eligibility for persons like Lake whose crimes were committed prior to the effective date of the new statute. I.C. § 19-2513.

The pre-1987 statutes did not specify how parole was to be conferred when an inmate was serving consecutive indeterminate terms. However, at the request of the Commission the Idaho Attorney General issued an opinion in 1987 providing guidance on this subject, Attorney General Opinion 87-9. Relying in part upon the Idaho Supreme Court's decision in State v. Kaiser, 108 Idaho 17, 696 P.2d 868 (1985), the attorney general opined that an inmate, while remaining incarcerated, could be paroled from an indeterminate sentence to a consecutive sentence. That is, an inmate could be on "institutional parole" from a prior sentence while simultaneously serving a consecutive sentence. The attorney general's opinion noted that "[b]y employing such an approach, the Commission will be able to avoid the harsh result of the conversion of an indeterminate sentence to a fixed sentence as a result of the presence of a consecutive term."

The attorney general's opinion that institutional parole was authorized where consecutive sentences were being served was endorsed by this Court in State v. Camarillo, 116 Idaho 413, 414, 775 P.2d 1255, 1256 (Ct.App.1989), where we stated: "Our presumption is consistent with Attorney General Opinion No. 87-9, advising the Commission of Pardons and Parole that even in cases where consecutive, indeterminate sentences have been properly imposed, it is not necessary for the inmate to serve the first sentence to expiration, and to begin serving the second, before receiving parole consideration."

Shortly thereafter, in Freeman v. State, Dep't of Corrections, Comm'n of Pardons and Paroles, 116 Idaho 985, 783 P.2d 324 (Ct.App.1989), we reiterated that an inmate serving consecutive sentences under the pre-1987 statutes would become eligible for institutional parole on the earlier sentences. In that case, an inmate was sentenced in 1982 to consecutive terms for two counts of lewd and lascivious conduct with a minor child. He filed a petition for a writ of habeas corpus claiming that he had been unlawfully denied parole on the first sentence. The petition was dismissed by the trial court. In reversing the dismissal, we offered the following discussion:

Next, we address Freeman's claim that he was denied parole on unlawful grounds. Freeman acknowledges that the decision to grant or deny a parole is discretionary and is entirely within the power of the Commission of Pardons and Parole (Commission). Parole under the Idaho correctional scheme is not a constitutionally protected right. See Izatt v. State, 104 Idaho 597, 661 P.2d 763 (1983)

. However, he contends that he was arbitrarily passed to his good time release date [on the first sentence], which would become the commencement of his second sentence. According to Freeman, this action was based on the Commission's erroneous view that an inmate serving consecutive sentences could not become eligible for a parole hearing until his good time release date, or until the entirety of his first sentence had been served, whichever came first.

As we noted in State v. Camarillo, 116 Idaho 413, 775 P.2d 1255 (Ct.App.1989), it is unnecessary for an inmate under consecutive sentences to serve the first sentence to its expiration where that sentence is an indeterminate one. See also [Attorney...