Petersen v. Utah Bd. of Pardons

• Decision Date: 03 November 1995
• Docket Number: No. 940178,940178
• Citation: 907 P.2d 1148
• Parties: Bryon D. PETERSEN, Petitioner and Appellant, v. UTAH BOARD OF PARDONS, Respondent and Appellee.
• Court: Utah Supreme Court

Page 1148

907 P.2d 1148

Bryon D. PETERSEN, Petitioner and Appellant, v. UTAH BOARD OF PARDONS, Respondent and Appellee.

No. 940178.

Supreme Court of Utah.

Nov. 3, 1995.

Bryon D. Petersen, Draper, pro se.

Jan Graham, Atty. Gen., Brent A. Burnett, Asst. Atty. Gen., Salt Lake City, for defendant.

STEWART, Associate Chief Justice:

Bryon D. Petersen seeks direct review in this Court of a Board of Pardons order revoking his parole. Not knowing what procedure is appropriate to obtain judicial review of the Board order, Petersen styles himself both a petitioner and an appellant.

The Board's parole revocation order resulted from the following facts. Petersen was initially sentenced in January 1982 to a prison term of five years to life for aggravated burglary and another term of not more than five years for aggravated assault. On February 9, 1988, he was placed on parole for a period of three years, and in June 1989, while on parole, he was arrested and charged with aggravated burglary, two counts of attempted criminal homicide, possession of a firearm by a restricted person, and violation of the habitual criminal statute. A Board of Pardons information alleging that Petersen had violated the terms of his parole agreement was served on him on June 23, 1989.

On June 28, 1989, more than fourteen days after the Board issued the warrant, a prerevocation hearing was held; but because the prerevocation hearing was held after the Board's fourteen-day time limit, the hearing officer dismissed the information without prejudice. On June 28, 1989, the Board issued a second warrant, and on July 3, 1989, the Board served Petersen with another information, charging him with "having committed" the following parole violations and offenses: (1) attempted criminal homicide, (2) aggravated burglary, (3) being an habitual criminal, (4) possession of a firearm by a restricted person, and (5) use or possession of alcohol in violation of the parole agreement.

At the second prerevocation hearing, held on July 10, 1989, the hearing officer ruled that the allegations against Petersen were supported by probable cause. On September 20, 1989, less than ninety days from the date of Petersen's second prerevocation hearing, the Board commenced a parole violation hearing but then continued the hearing without date pursuant to rule 655-505-2 of the Utah Administrative Code pending the outcome of his trial on the criminal charges constituting the alleged parole violations. Petersen did not object to the continuance of the parole revocation proceedings.

In February 1990, the district court found Petersen guilty of aggravated burglary and attempted criminal homicide (two counts) and also found him to be an habitual criminal. On March 22, 1990, the Board filed an amended information charging parole violations based on the criminal convictions. The amended information inserted the language "having been convicted of" in front of "aggravated burglary, attempted murder (two counts), and habitual criminal" in place of the language "having committed" those offenses. The revocation hearing was held September 5, 1990, some two years and seven months after Petersen commenced his parole. Petersen pleaded "no contest" to the charges in the amended parole violation information. After informing Petersen that the Board considered a no-contest plea to be the same as a guilty plea, the Board accepted Petersen's plea, revoked his parole, and set a rehearing date for September 2000.

In the meantime, Petersen appealed the convictions, and on April 4, 1991, this Court reversed the convictions and dismissed the criminal charges with prejudice in State v. Petersen, 810 P.2d 421 (Utah 1991), on the ground that Petersen's trial was held more than 120 days after he had filed a demand for disposition of the charges against him. Id. at 428.

In light of that reversal, Petersen requested that the Board reconsider his plea of no contest. A new Board warrant was issued April 16, 1991, alleging that Petersen had violated his parole by committing the offenses of aggravated burglary, attempted homicide, and possession of a firearm by a restricted person. In this warrant, no reference was made to his subsequently reversed criminal convictions on those charges. Probable cause for these allegations had already been determined on July 10, 1989, prior to the initial parole revocation hearing. At a new parole revocation hearing held July 19, 1991, Petersen argued that his parole had terminated by operation of law on February 9, 1991, three years from the date on which he was originally paroled, and that the hearing was not timely in any event. The hearing was continued to allow the parties to brief the issues raised in Petersen's motion to dismiss the parole violation allegations. On October 21, 1991, the Board issued an interim decision taking the matter under advisement until consideration of the case by the full Board. On April 13, 1992, the Board issued a final order that denied Petersen's motion to dismiss and revoked his parole. The Board stated:

At his 9/5/90 parole revocation hearing, Mr. Petersen challenged the grounds of his court conviction but did not challenge the legality of his parole conviction. In fact, he conceded through his voluntary plea of "no contest" that his parole had been violated. The three year clock towards statutory termination clearly came to a stop based on his parole being revoked by his own admission at that hearing. When the court convictions were subsequently reversed, the Board determined that fairness dictated giving Mr. Petersen a new chance to refute the substantive allegations against him, i.e., aggravated burglary and attempted murder.

In this Court, Petersen alleges some seventeen errors, including numerous claims that the Board violated its own rules in a number of respects; but his brief states that he will "not attempt to deal with each and every question individually" and will argue essentially only three issues: (1) that the Board's revocation of his parole violated the ex post facto provisions of the state and federal constitutions because it was based on a statute enacted after he commenced parole; (2) that the revocation violated the due process clauses of those constitutions; and (3) that he was denied equal protection of the law. The essence of all three claims is that his parole was unlawfully terminated and that he is entitled to be discharged from prison.

Not knowing what procedure to invoke to obtain review of the Board's order revoking his parole, Petersen relies alternatively on (1) an appeal and (2) a writ of habeas corpus. Although the Board has not addressed the jurisdiction of the Court to hear this matter, subject matter jurisdiction is an issue that can and should be addressed sua sponte when jurisdiction is questionable. Olson v. Salt Lake City Sch. Dist., 724 P.2d 960, 964 (Utah 1986); 13A Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3536 (1984).

The first question is whether this Court has jurisdiction by way of an appeal. The answer is clear. Petersen has no right of appeal because the Legislature has specifically barred appeals from Board of Pardons orders. Utah Code Ann. § 77-27-5(3) states, "Decisions of the Board of Pardons and Parole in cases involving paroles, pardons, commutations or terminations of sentence, restitution, or remission of fines or forfeitures are final and are not subject to judicial review." That provision is dispositive as to the Court's appellate jurisdiction. See Foote v. Utah Bd. of Pardons, 808 P.2d 734 (Utah 1991). We note that many of the issues Petersen raises, especially with respect to the Board's compliance with its rules, could be resolved only by way of an appeal from the Board's order, if an appeal were allowed. Those issues will not therefore be addressed.

The next question is whether this Court can address any of the issues Petersen raises on a petition for an extraordinary writ, given the Legislature's refusal to grant a right of appeal. Although the Legislature can refuse to provide a statutory appeal from orders of a governmental agency, the Legislature cannot curtail the constitutional powers of this Court to issue extraordinary writs in appropriate circumstances. Article VIII, section 3 of the Utah Constitution provides that the Supreme Court has "original jurisdiction to issue all extraordinary writs." The constitution does not define the term "extraordinary writs," but the meaning of the term can be ascertained in large measure from the history of Article VIII.

The term "extraordinary writs" first appeared in the Utah Constitution in the 1984 rewriting of Article VIII. As initially adopted in 1896, Article VIII, section 4 of the constitution referred to specific writs: "The Supreme Court shall have original jurisdiction to issue writs of mandamus, certiorari, prohibition, quo warranto and habeas corpus. In other cases, the Supreme Court shall have appellate jurisdiction only, and power to issue writs necessary and proper for the exercise of that jurisdiction." ¹

The term "extraordinary writs" that appears in the 1984 rewrite of Article VIII, section 3 was intended to include the specific writs mentioned in the original version of Article VIII, including "all writs necessary and proper for the exercise" of the Supreme Court's appellate function. Thus, the term "extraordinary writs" in Article VIII, section 3 includes the writs specifically mentioned in Article VIII, section 4 of the 1896 constitution, i.e., the prerogative writs of mandamus, certiorari, prohibition, quo warranto, and habeas corpus, and all writs necessary and proper for this Court's appellate jurisdiction.

Because this Court's writ powers are derived from the constitution, the Legislature cannot diminish them. As early as 1908, it was established that the Legislature had no power to restrict the writ powers. State ex rel. Robinson v. Durand, 36...