Neese v. Utah Bd. of Pardons & Parole

Decision Date14 December 2017
Docket NumberNo. 20150487,20150487
Citation416 P.3d 663
Parties Michael NEESE, Appellant, v. UTAH BOARD OF PARDONS AND PAROLE, Appellee.
CourtUtah Supreme Court

Marshall Thompson, Salt Lake City, for appellant

Sean D. Reyes, Att’y Gen., Brent A. Burnett, Asst. Solic. Gen., Amanda N. Montague, Asst. Att’y Gen., Salt Lake City, for appellee

Justice Himonas authored the opinion of the Court, in which Justice Durham and Justice Pearce joined, and in which Chief Justice Durrant joined in Parts I, II, and III.A.

Chief Justice Durrant filed an opinion concurring in part and concurring in the result.

Associate Chief Justice Lee filed a dissenting opinion.

On Certification from the Utah Court of Appeals

Justice Himonas, opinion of the Court:


¶ 1 Michael Neese, a Utah prison inmate, has never been convicted of a sex offense, subjected to prison discipline for sexual misconduct, or otherwise adjudicated a sexual offender. Yet the Board of Pardons and Parole (Parole Board) has denied him an original release date for parole largely based on its determination that he’s a sex offender and his refusal to participate in sex offender treatment. Applying the principles we articulated in Labrum v. Utah State Board of Pardons , 870 P.2d 902 (Utah 1993), we hold today that the district court erred in granting summary judgment to the Parole Board on the question of whether it violated Mr. Neese’s due process rights under article I, section 7 of the Utah Constitution. Before the Parole Board may take the refusal of inmates in Mr. Neese’s shoes to participate in sex offender treatment into consideration in deciding whether to grant them parole, it owes them (1) timely, particularized written notice that allegations they committed unconvicted sexual offenses will be decided; (2) the opportunity to call witnesses; and (3) a written decision adequately explaining its basis for determining that they’re sex offenders and asking them to participate in sex offender treatment.


¶ 2 After his trial on forcible sodomy ended in a mistrial, Mr. Neese pleaded guilty to two counts of obstruction of justice, one count of theft, and one count of burglary. Mr. Neese received a composite prison sentence of two to thirty years. Under Utah’s discretionary sentencing scheme, this meant that the Parole Board was authorized to order Mr. Neese’s release any time between two and thirty years from his sentence and commitment. A nonbinding "sentencing matrix" prepared for the district court estimated that Mr. Neese would likely serve forty-six months, with an anticipated release date in 2014.1

¶ 3 Mr. Neese’s original parole hearing began on September 13, 2011. The hearing officer asked Mr. Neese about his criminal history, his record in prison, and his plans upon release. Mr. Neese only partially accepted responsibility for the offenses to which he pleaded guilty, and he minimized his prior criminal record. Mr. Neese also reported that he’d successfully participated in anger management and other prison programming, and he stated that, upon release, he intended to work in construction.

¶ 4 The hearing officer questioned Mr. Neese extensively about allegations that he’d raped his friends’ daughter in 2009, while he was an overnight guest at her parents’ house. The hearing officer based his questions on Mr. Neese’s presentence report, police reports, a victim statement, and correspondence from the prosecuting attorneys in Mr. Neese’s case, all of which stated that the seventeen-year-old daughter of one of Mr. Neese’s longtime friends had told police that she had awoken to find Mr. Neese in her bed with his erect penis between the cheeks of her buttocks.2

¶ 5 In response to the hearing officer’s questioning, Mr. Neese "denied attempting to sodomize the victim." He acknowledged that he’d entered her room while she was sleeping and that his shirt was off at the time, but he explained that he did so because he was about to go to sleep, needed a pillow and blanket, and knew that was where his host kept spare bedding. He speculated that the alleged victim—who he testified had previously been the victim of sexual abuse—had falsely accused him because she’d been "startled" by seeing him in her room with his shirt off.

¶ 6 After his first hearing, the Parole Board declined to set a release date and scheduled a rehearing. It based its decision on (1) his "[h]istory of similar offenses," (2) his "[h]istory of unsuccessful ... supervisions," (3) the fact that he’d been convicted of offenses involving "[m]ultiple incidents and/or victims," (4) the "[p]ersonal gain he reaped from the offense," (5) his "[d]enial or minimization ... of responsibility," (6) his history of "[r]epeated, numerous ... incarceration[s] or parole revocation[s]," and (7) his lack of "[o]verall rehabilitative progress and promise." The Parole Board scheduled the rehearing for Mr. Neese on February 1, 2014, and it stated that a sex offender treatment memorandum was "due to the Board of Pardons by 01/2014."

¶ 7 Mr. Neese’s rehearing took place on February 13, 2014. Unlike at his first hearing, Mr. Neese accepted responsibility for the crimes of which he was convicted and didn’t seek to minimize his prior criminal history other than refusing to discuss his juvenile record because he considered it "irrelevant." The hearing officer noted that Mr. Neese had been a "good inmate" who had completed numerous life skills classes, and Mr. Neese again emphasized that he intended to do construction work once he was released.

¶ 8 As at Mr. Neese’s first hearing, the hearing officer again asked Mr. Neese about his alleged 2009 sex offense. Mr. Neese again denied these allegations and testified in detail—and consistent with the testimony he gave at his first parole hearing—about what had happened, why he believed he was falsely accused, and why he thought his accuser was not credible. Mr. Neese stated that he wasn’t willing to participate in sex offender treatment.

¶ 9 At the end of the second hearing, the hearing officer stated that he didn’t "buy [Mr. Neese’s] story on the sex offense." He also telegraphed that Mr. Neese’s refusal to participate in sex offender treatment would be, as the district court found it was, a factor in his recommendation to the Parole Board, stating, "I’m gonna take the matter under advisement as far as what I’m gonna recommend [to the Parole Board], but ... I wish you’d ... been willing to do sex offender treatment, that would have been a lot better."

¶ 10 On February 20, 2014, the Parole Board declined for a second time to fix an early release date for Mr. Neese. Among the reasons it gave was Mr. Neese’s refusal to accept responsibility—a consideration that could only apply on the assumption that Mr. Neese had committed a sexual offense because Mr. Neese had accepted responsibility for his other crimes. The Parole Board scheduled a third hearing for Mr. Neese, and again ordered the Department of Corrections to prepare a sex offender treatment memorandum.

¶ 11 After he was denied a release date for a second time, Mr. Neese filed a pro se petition for a writ of extraordinary relief. His lawsuit alleged that the Parole Board’s determination that he was a sex offender and its decision to condition his parole on successful completion of sex offender treatment violated his due process rights. Mr. Neese also asked the district court to appoint counsel. The district court denied Mr. Neese’s request for counsel and dismissed Mr. Neese’s complaint as frivolous, but the court of appeals reversed after concluding that Mr. Neese had raised a nonfrivolous issue implicating "the fairness of the process by which the [Parole] Board undertakes its sentencing function." Neese v. Utah Bd. of Pardons & Parole , No. 2014647-CA (unpublished order Nov. 20, 2014) (quoting Padilla v. Utah Bd. of Pardons & Parole , 947 P.2d 664, 667 (Utah 1997) ).

¶ 12 On remand, the Parole Board moved for summary judgment and Mr. Neese filed a response in opposition. The district court granted summary judgment for the Parole Board, concluding that Mr. Neese received due process under the state constitution.

¶ 13 Mr. Neese now appeals. He argues that the Parole Board’s determinations violate (1) the Utah Constitution’s unnecessary rigor provision, (2) the Utah Constitution’s due process provision, (3) the Eighth Amendment’s prohibition on cruel and unusual punishment, and (4) the Fourteenth Amendment’s Due Process Clause.

¶ 14 Utah Code section 78A-3-102(3)(b) gives us jurisdiction.


¶ 15 Because this case poses significant preservation problems, we first address which of Mr. Neese’s claims are preserved for review.

¶ 16 The preservation requirement is a "self-imposed" rule of "prudence" that aims to promote fairness and judicial economy. Fort Pierce Indus. Park Phases II, III and IV Owners Ass’n v. Shakespeare , 2016 UT 28, ¶ 13, 379 P.3d 1218 (citation omitted). "As a general rule, claims not raised before the trial court may not be raised on appeal." State v. Holgate , 2000 UT 74, ¶ 11, 10 P.3d 346 (citation omitted). To be adequately raised, a claim "must at least be raised to a level of consciousness such that the trial [court] can consider it." State v. Cruz , 2005 UT 45, ¶ 33, 122 P.3d 543 (alteration in original) (citation omitted). Thus, an issue is preserved when it’s "presented to the trial court in such a way that the trial court has an opportunity to rule on that issue." In re Adoption of Baby E.Z. , 2011 UT 38, ¶ 25, 266 P.3d 702 (citation omitted) (internal quotation marks omitted). Similarly, when a lower court decides "to take up [a] question," this decision "conclusively overc[o]me[s] any objection that the issue was not preserved for appeal" because the issue has consciously been addressed by the court. Shakespeare , 2016 UT 28, ¶ 13, 379 P.3d 1218 (citation omitted). But the mere fact that a party "mention[ed] ... an issue without introducing supporting evidence or relevant legal authority" doesn’t suffice to...

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