Neel v. Holden

• Decision Date: 07 December 1994
• Docket Number: No. 930447,930447
• Citation: 886 P.2d 1097
• Parties: David A. NEEL, Plaintiff and Appellant, v. Tamara HOLDEN, Warden, Utah State Prison, and the Department of Corrections by and through the Board of Pardons, Defendants and Appellees.
• Court: Utah Supreme Court

Page 1097

886 P.2d 1097

David A. NEEL, Plaintiff and Appellant, v. Tamara HOLDEN, Warden, Utah State Prison, and the Department

of Corrections by and through the Board of

Pardons, Defendants and Appellees.

No. 930447.

Supreme Court of Utah.

Dec. 7, 1994.

Gregory J. Sanders, Salt Lake City, for plaintiff.

Jan Graham, Atty. Gen., James H. Beadles, Asst. Atty. Gen., Salt Lake City, for defendants.

ZIMMERMAN, Chief Justice:

In this habeas corpus proceeding, plaintiff David Neel, an inmate at the Utah State Prison, contends that the Utah Board of Pardons (the "Board") denied him due process of law and the effective assistance of counsel by (i) denying him access to confidential psychological reports that the Board used in deciding not to grant him parole, and (ii) refusing to permit his counsel to address the Board directly during his parole grant hearing. The district court denied Neel's petition. We reverse and remand with instructions that another parole grant hearing be held in accordance with the requirements of this opinion.

In 1983, Neel was convicted of sexually abusing a child, a first degree felony which carried with it an indeterminate sentence of five years to life. The Board denied Neel parole at his original parole grant hearing on November 14, 1984, and at subsequent hearings in 1986 and 1989. At the 1989 hearing, the Board set a parole date for the following year.

In February of 1990, Neel was paroled to the Bonneville Community Correctional Center. Within a few weeks, however, he left the Center in violation of his parole agreement. He was arrested seven days later in Pennsylvania. At a parole revocation hearing held July 18, 1990, Neel pleaded guilty to a charge of parole violation. At that time, the Board revoked his parole and scheduled a parole grant hearing for February of 1991. Due to a delay in preparing his psychological report, however, the hearing did not take place until July 26, 1991. At that hearing, the Board denied Neel parole and scheduled another hearing for August of 1992. ¹ Neel's petition challenges certain procedures followed by the Board in determining whether to grant parole at the 1991 hearing.

In making its determination not to grant parole, the Board adhered to its rules then in effect. See Utah Admin.Code R655-303, -308 (1991). Prior to the hearing, the Board granted Neel access to certain documents contained in his file. However, relying on rule 655-303 of the Administrative Code, the Board denied him access to those portions of his file classified as "confidential," which included a psychological report that the Board used in determining whether to grant parole. ²

Neel's attorney was present at the hearing, and the Board allowed Neel to consult with his attorney both before and during the hearing. The Board did not, however, allow Neel's attorney to sit with Neel or to address the Board during the hearing.

Neel filed a habeas corpus petition in Third District Court in which he argued that certain procedures followed by the Board in determining whether to grant him parole violated his right to due process, as well as other rights guaranteed by the state and federal constitutions. Upon the State's motion, the district court dismissed Neel's petition. On appeal, the court of appeals remanded the case to the district court for further development of the record and entry of findings in support of its decision. Neel v. Holden, 849 P.2d 601, 602 (Utah Ct.App.1993). Following remand and further proceedings, the district court again dismissed Neel's petition. Neel appealed to this court. ³

We first state the appropriate standard of review. When reviewing an appeal from a dismissal of a petition for a writ of habeas corpus, we accord no deference to the conclusions of law that underlie the dismissal. They are reviewed for correctness. Fernandez v. Cook, 783 P.2d 547, 549 (Utah 1989). However, while "we must review the fairness of the process by which the Board undertakes its sentencing function, ... we do not sit as a panel of review on the result." Lancaster v. Utah Bd. of Pardons, 869 P.2d 945, 947 (Utah 1994) (citing Labrum v. Utah State Bd. of Pardons, 870 P.2d 902, 910 (Utah 1993)).

The first issue is whether Neel's post-revocation parole grant hearing was subject to the due process requirements of the Utah Constitution. Article I, section 7 of the Utah Constitution guarantees that "[n]o person shall be deprived of ... liberty ... without due process of law." Utah Const. art. I, § 7. In several recent cases, this court has relied on that clause to require certain procedural due process guarantees at some parole grant hearings. See, e.g., Labrum, 870 P.2d at 909; Foote v. Utah Bd. of Pardons, 808 P.2d 734, 735 (Utah 1991). In Labrum, for example, we held, "For purposes of original parole grant hearings at which predicted terms of incarceration are determined, fundamental principles of due process under article I, section 7 of the Utah Constitution apply." 870 P.2d at 911.

To determine whether due process requirements applied to Neel's 1991 parole grant hearing, it is necessary first to examine the nature and development of Utah's indeterminate sentencing system. As we explained in Labrum, Utah's system of parole was established in 1899 in the context of the determinate sentencing scheme in effect at that time. Id. at 906. Under such a system, an offender's liberty interest is extinguished as soon as a trial court sentences that individual to a determinate term. Because no liberty interest is implicated in making parole decisions in determinate sentencing systems, due process concerns do not arise. Accordingly, courts have traditionally been extremely deferential to parole board decision making in determinate sentencing systems. Id. at 905.

Since 1913, however, Utah has employed an indeterminate sentencing system under which trial courts do not sentence offenders to a determinate term but impose a statutorily prescribed range of years. Act of March 24, 1913, ch. 100, 1913 Utah Laws 192; Labrum, 870 P.2d at 907 (citing State v. Egbert, 748 P.2d 558, 563 (Utah 1987) (Zimmerman, J., dissenting)). Under Utah's current system, "the Board [of Pardons] determines the actual number of years a defendant is to serve." Labrum, 870 P.2d at 907 (citing Foote, 808 P.2d at 735). For all intents and purposes, adoption of this indeterminate sentencing system transformed the Board from an agency having the ability to shorten a prisoner's judge-determined sentence into an agency with power analogous to that of a court to actually impose a sentence. Therefore, the Board's decision of whether to grant parole does implicate the offender's liberty interest because at the time an offender first comes before the Board, no term of incarceration has been fixed. Consequently, at least under some circumstances, the Board's decision-making process must be restricted by the procedural safeguards of due process. See, e.g., Labrum, 870 P.2d at 909; Foote, 808 P.2d at 735.

On the basis of the above analysis, this court held in Labrum that due process guarantees apply in "original parole grant hearings at which predicted terms of incarceration are determined." 870 P.2d at 911. The "original" parole grant hearing at issue in Labrum was the first hearing at which the Board could establish a tentative release date. Utah Code Ann. § 77-27-7(1); Utah Admin.Code R671-201-1. In the present case, Neel argues that his post-revocation parole grant hearing is analogous to the original parole grant hearing in Labrum and, therefore, that he was equally entitled to due process protection. We agree and conclude that the general principles articulated in Labrum are applicable here as well.

Our decision today, however, does not cover every type of parole hearing. In Labrum, we applied due process guarantees to "original parole grant hearings at which predicted terms of incarceration are determined," 870 P.2d at 911, not merely because of the temporal proximity of these original hearings to the sentencing phase of the trial but, more important, because "[t]he function and purpose of the original parole grant hearing is to make the first determination of the actual term the inmate is to serve in prison." Id. at 908. Until that initial term is set, any proceeding at which the issue is considered must be perceived as a threat to the prisoner's liberty. Once that initial term is set, however, the prisoner's liberty interest is diminished to an expectation of being released upon completion of the term fixed. Therefore, we extend today's decision only to those parole hearings at which an inmate's release date is fixed or extended.

After a prisoner's liberty interest has been diminished to an expectation of release on a certain date, that interest revives either upon completion of the term fixed or upon a grant of parole before that fixed date. Once paroled, offenders have a liberty interest that is limited by the restrictions that govern parole; it is nevertheless a liberty interest which is entitled to due process protection. Gagnon v. Scarpelli, 411 U.S. 778, 781-82, 93 S.Ct. 1756, 1759, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 481-82, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). If an offender's parole is revoked, the offender's liberty interest persists until the Board establishes a new release date at a hearing that follows the parole revocation hearing.

The situation of an offender whose parole has been revoked but for whom the Board has not yet established a new release date can be analogized to that of a defendant who has been found guilty but not yet sentenced. Just as the finding of guilt does not render due process guarantees inapplicable to presentencing or sentencing proceedings, the revocation of parole does not remove due process considerations from subsequent proceedings held prior to the establishment of a new release date.

Moving to the present case, Neel's 1991 hearing was...