Monson v. Carver
| Decision Date | 06 December 1996 |
| Docket Number | No. 950199,950199 |
| Citation | 928 P.2d 1017,305 Utah Adv. Rep. 7 |
| Parties | 305 Utah Adv. Rep. 7 Jon Bryan MONSON, Plaintiff and Appellant, v. Scott CARVER, Warden, and Utah Board of Pardons and Parole, Defendants and Appellees. |
| Court | Utah Supreme Court |
J. Thomas Bowen, Salt Lake City, for plaintiff and appellant.
Jan Graham, Atty. Gen., Norman E. Plate, Asst. Atty. Gen., Salt Lake City, for defendants and appellees.
Jon Bryan Monson appeals from the district court's denial of his petition for a writ of habeas corpus in which he alleged that the Board of Pardons and Parole ("Board") committed various constitutional violations in setting his parole date and ordering him to pay restitution as a condition of parole. We affirm in part and reverse in part.
The facts leading up to this appeal are as follows: On November 18, 1985, Monson pleaded guilty to the murder of a coworker, Phillip W. Kerby. Monson and Kerby had been involved in various thefts from their employer, and Monson shot Kerby in the back and chest to prevent him from disclosing information concerning the thefts. Monson then buried Kerby's body under a pile of rocks near Oakley, Utah. Kerby's parents reported him missing to police on October 3, 1984. His body was not found until May 5, 1985, when Monson's brother discovered it under the pile of rocks. Thereafter, Monson readily admitted his guilt and cooperated with law enforcement officers.
Monson was initially charged with first degree murder, but the charge was reduced to second degree murder pursuant to a plea agreement. On November 18, 1985, upon the entry of Monson's guilty plea, the trial court sentenced him to an indeterminate term of five years to life for the second degree murder conviction and enhanced Monson's sentence by one year because he used a firearm in the commission of the murder, pursuant to section 76-3-203(1) of the Utah Code. The trial court also recommended that Monson receive psychological and substance abuse counseling and treatment while at the Utah State Prison. Shortly after entering prison, Monson was transferred to Utah State Hospital, where he remained until the end of 1992 as a participant in the public offenders program.
On November 19, 1986, the Board held Monson's initial parole grant hearing. The Board made no parole decision at the initial hearing but ordered a rehearing to be held in November of 1993, which the Board later rescheduled for November of 1992. At the November 1992 rehearing, Kerby's father was permitted to testify, and he questioned whether justice was served by allowing Monson to serve time at the state hospital rather than in prison. This sentiment was echoed by the Board member who conducted the rehearing, although he also indicated that Monson had made "commendable progress" at the hospital, had obtained his high school diploma and associate degree, was working toward a journeyman plumber's license, and that hospital personnel felt that he had "reached a maximum" and was "well rehabilitated." Shortly after the rehearing, the Board issued a formal order granting Monson a parole date of November 23, 1999, and imposing four special parole conditions which required that Monson (i) submit to random drug testing, (ii) have no contact with Kerby's family, (iii) not consume or possess any alcohol, and (iv) pay restitution in an amount to be determined.
On January 19, 1993, Monson filed a pro se petition in the district court alleging that the Board had subjected him to cruel and unusual punishment and double jeopardy by refusing to consider and count the nearly seven years that he had spent at Utah State Hospital as time served toward his sentence. Monson later obtained the services of an attorney who, with leave of court and pursuant to a stipulation of the parties, filed an amended petition on November 3, 1993. The amended petition alleged that the Board (i) had exceeded its constitutional authority in ordering restitution; (ii) lacked statutory authority to order restitution at the time Monson's sentence was imposed, and thus its order violated the ex post facto prohibitions of the Utah and federal constitutions; (iii) failed to comply with certain procedural requirements when it ordered restitution; (iv) abused its discretion because its order of restitution was for something other than pecuniary damages; (v) subjected Monson to double jeopardy by ordering restitution; (vi) was imprisoning Monson effectively for failure to pay a debt in violation of article I, section 16 of the Utah Constitution; (vii) inflicted cruel and unusual punishment and violated due process by exceeding the Utah Sentence and Release Guidelines ("Guidelines") in setting a parole date for Monson; and (viii) did not provide Monson with adequate due process because it failed to give a detailed written rationale for departing from the Guidelines, failed to allow Monson to have an attorney at the 1992 rehearing and present witnesses on his behalf, failed to credit Monson with precommitment time served in jail and time spent at Utah State Hospital, and failed to provide an adequate rationale for his parole date. The Board answered and moved to dismiss the petition for failure to state a claim upon which relief may be granted or, alternatively, for judgment on the pleadings, pursuant to rules 12(b)(6) and 12(c), respectively, of the Utah Rules of Civil Procedure.
The district court held a hearing on the Board's motions on February 15, 1994. In its subsequent order, the court ruled that there was no right to parole under Utah law and that the trial court had imposed a valid indeterminate sentence upon Monson. Accordingly, the court reasoned, unless the Board in its unfettered discretion granted Monson a parole date, his term would not expire until his death. Because Monson was free to accept or reject any parole offer and its attendant terms and conditions, "the Board cannot make [Monson's] sentence any more harsh than that already imposed by the court at sentencing," so that the conditions of parole actually imposed were not "punishment" forbidden by the ex post facto or double jeopardy clauses of the Utah and federal constitutions. Specifically, the court ruled that the Board is free to set any parole conditions that are legitimately related to an inmate's underlying crime, including the restitution ordered in Monson's case. The court then ruled that a grant of parole after serving fourteen 1 years of a life sentence was not so harsh as to violate the cruel and unusual punishment clauses of the Utah and United States Constitutions. Accordingly, the court dismissed all of Monson's claims except those related to the Board's departure from the Guidelines. As to those claims, the court deferred making a decision until after an evidentiary hearing at which Monson would be required to prove that he actually relied on the Guidelines when he entered his guilty plea.
The evidentiary hearing was subsequently held on December 22, 1994. Monson and his mother both testified that Monson's trial attorney had indicated that Monson would actually serve about six to seven years based on the Guidelines if he pleaded guilty to second degree murder. Monson's trial attorney testified that while he conveyed his opinion that Monson would serve only seven to eight years, he had no personal knowledge of the Guidelines at that time and had simply given an estimate based on his general knowledge. The court then ruled that Monson had failed to demonstrate that he actually relied on the Guidelines when he entered his plea. Accordingly, the district court dismissed the remainder of Monson's claims.
Monson now appeals the district court's rejection of the claims he raised in his petition. Specifically, he contends that (i) Utah's indeterminate sentencing scheme constitutes cruel and unusual punishment; (ii) the Board lacks constitutional authority to order restitution; (iii) the Board's order of restitution violates constitutional and statutory prohibitions against ex post facto laws and subjected Monson to double jeopardy; (iv) the Board failed to follow proper procedures in ordering restitution; and (v) the Board violated Monson's due process rights at the 1992 rehearing by denying him legal counsel, not allowing witnesses to testify on his behalf, and failing to give an adequate rationale for its parole decision.
Monson also raises several additional claims which were not included in his original or amended petition and which we do not address today. These additional claims are that the Board (i) failed to provide Monson with access to his Board file; 2 (ii) violated the compulsory process clause of the Sixth Amendment to the United States Constitution by failing to allow Monson to have witnesses testify on his behalf; (iii) violated the speedy trial clause 3 and rule 22 of the Utah Rules of Criminal Procedure by delaying Monson's "sentencing" for some seven years after the entry of his guilty plea; (iv) is bound by the alleged representations of individuals within the criminal justice system that if Monson participated in the public offenders program, he would be paroled shortly after successfully completing the program; and (v) offends the separation of powers principles contained in article V, section 1 of the Utah Constitution because it makes sentencing decisions which are subject to limited and inadequate appellate review under rule 65B of the Utah Rules of Civil Procedure. We decline to address these additional claims because of our general rule that "issues not raised at trial cannot be argued for the first time on appeal." State v. Lopez, 886 P.2d 1105, 1113 (Utah 1994). This rule applies to all claims, including constitutional questions, unless the petitioner demonstrates that "plain error" occurred or "exceptional circumstances" exist. Id. Monson has not attempted to demonstrate the applicability of either exception, and we therefore do not reach the claims that he failed to...
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