Preece v. House

• Decision Date: 23 November 1994
• Docket Number: No. 920605,920605
• Citation: 886 P.2d 508
• Parties: Robert D. PREECE, Plaintiff and Petitioner, v. Tom HOUSE, Warden of the Utah State Prison; Pete Haun, Chairman of the Utah Board of Pardons; Heather Cooke, Member of the Utah Board of Pardons, and other individual members of the Utah Board of Pardons both past and present whose identities are presently unknown, Defendants and Respondents.
• Court: Utah Supreme Court

Page 508

886 P.2d 508

Robert D. PREECE, Plaintiff and Petitioner, v. Tom HOUSE, Warden of the Utah State Prison; Pete Haun Chairman of the Utah Board of Pardons; Heather Cooke Member of the Utah Board of Pardons, and other individual members of the Utah Board of Pardons both past and present whose identities are presently unknown, Defendants and Respondents.

No. 920605.

Supreme Court of Utah.

Nov. 23, 1994.

Craig S. Cook, Salt Lake City, for plaintiff.

R. Paul Van Dam, Atty. Gen., James H. Beadles, Asst. Atty. Gen., Salt Lake City, for defendants.

J. Thomas Bowen, Salt Lake City, for Utah State Prison Inmates.

HOWE, Justice:

We granted certiorari to review the decision of the court of appeals in Preece v. House, 848 P.2d 163 (Utah Ct.App.1993), cert. granted, 853 P.2d 897 (Utah 1993).

In July 1982, Robert D. Preece pleaded guilty to two counts of aggravated robbery, a first degree felony, and was sentenced to two five-to-life terms of imprisonment. Approximately one year after his incarceration, he stabbed and killed an inmate to whom he owed money. He pleaded guilty to manslaughter and was sentenced to an additional term of one to fifteen years to run concurrently with his other sentences.

Eight years later, Preece attended a parole grant hearing conducted by Heather Cooke, a member of the Utah Board of Pardons. She informed him that under the Utah Sentence and Release Guidelines, Utah Court Rules Ann. app. D (1994), he should be incarcerated for "147 months, which would mean no release until October 1994." However, she indicated that she planned to "go below [the] guideline" and recommend to the board that he be released on May 11, 1993. Four days later, the full board rejected Cooke's recommendation and ordered that Preece not be paroled until October 11, 1994, the parole date which the board thought was consistent with the guidelines.

In May 1992, Preece filed this petition for extraordinary relief in third district court under rule 65B of the Utah Rules of Civil Procedure. It listed as defendants Tom House, Warden of the Utah State Prison, Pete Haun, Chairman of the Utah Board of Pardons, Heather Cooke, and other "[i]ndividual members of the Utah State Board of Pardons both past and present whose identities are presently unknown." He alleged that (1) Cooke was not impartial, (2) the board had considered a disciplinary report that was supposed to have been expunged from his prison file, (3) the board violated his procedural and substantive due process rights by not allowing him to "know what information was being submitted or relied upon" during his parole hearings, (4) the Utah sentencing guidelines create an "expectation of release" or liberty interest entitled to due process protection, and (5) due process requires the board to give an explanation for its decision to depart from the sentencing guidelines.

Sometime during the summer of 1992, Assistant Attorney General Steven Morrisett discovered that the board of pardons' staff had in fact miscalculated the length of Preece's incarceration under the guidelines at 147 months (12 1/2 years). The correct time period was 111 months (9 1/2 years). Morrisett disclosed this error to the district court and indicated that the board was likely to grant Preece a rehearing. On the basis of this information, the court continued the case to "let the Board of Pardons decide what they want to do in terms of taking their own action first."

In September 1992, Preece appeared before Don Blanchard, a member of the board of pardons, for a special attention hearing. Blanchard took the case under advisement for approximately 2 weeks, after which the full board rendered its decision to retain the October 1994 parole date. Preece amended his complaint, arguing that his original allegations against the board applied to the special attention hearing.

The district court granted the writ of habeas corpus and ordered that Preece be "released from the Utah State Prison forthwith." The court stated:

[U]nder the circumstance of the error made as to the guidelines discussed with Petitioner ... the Petitioner is entitled to an explanation of the error which the Board refuses to do. Further, due process requires fair process and a Petitioner is entitled to an explanation of why the error should be ignored and the longer term served. It is cruel and unusual punishment to do otherwise. The Petitioner has been denied due process and is being treated to cruel and unusual punishment when no correction or explanation is given as to the mistake and as to the time to be served by the Petitioner.

The court of appeals granted defendants' ex parte motion for stay pending appeal.

After hearing argument, the court of appeals rendered a per curiam decision. Preece v. House, 848 P.2d 163 (Utah Ct.App.1993). It reversed the district court's order of release, holding that "the authority to determine parole dates is vested in the Board of Pardons" and that habeas review of parole decisions is "limited to a review of procedural due process and does not extend authority for judicial review of the 'reasonableness of the parole decision.' " Id. at 164. The court further held that the board had violated its own rules by not providing a written explanation for its decision to retain the October 1994 date. Utah Admin.R. 671-305-2 (1992). However, it ruled that the "appropriate remedy" for this violation was "to require the Board expeditiously to provide the district court and petitioner with a written explanation of its reasons for the parole decision." Preece, 848 P.2d at 164. Finally, the court remanded the case, ordering the district court to treat it under Utah Rule of Civil Procedure 65B(e). Id.

We granted Preece's petition for a writ of certiorari. Preece v. House, 853 P.2d 897 (Utah 1993). A few days later, defendants filed a motion to vacate the opinion of the court of appeals and to consider the case as an original direct appeal from the district court transferred here pursuant to rule 44 of the Utah Rules of Appellate Procedure. After hearing argument, we denied the motion but directed that the question of jurisdiction be briefed and argued in this appeal.

We first address the jurisdictional issue. Prior to April 1992, appeals from orders on petitions for extraordinary writ sought by persons who were incarcerated or serving any other criminal sentence were governed by Utah Code Ann. § 78-2a-3(2)(g). ¹ That subsection provided that such appeals should be taken to the court of appeals except when the petition challenged the conviction of or the sentence for a first degree or capital felony, in which case the appeal would be heard by this court pursuant to section 78-2-2(3)(j). Accordingly, we held in Padilla v. Utah Board of Pardons, 820 P.2d 473, 473 (Utah 1991), that a petitioner who had been convicted of a first degree felony and who alleged that the board of pardons had violated his rights to due process but who did not challenge his conviction or sentence must appeal the denial of his petition to the court of appeals rather than to this court.

However, in April 1992, section 78-2a-3 was amended by the addition of subsection 2(h) to specifically deal with appeals from orders on petitions for extraordinary writ challenging decisions of the board of pardons. That subsection provides:

(2) The Court of Appeals has appellate jurisdiction, including jurisdiction of interlocutory appeals, over:

. . . . .

(h) appeals from the orders on petitions for extraordinary writs challenging the decisions of the Board of Pardons, except in cases involving a first degree or capital felony.

Thus, under subsection 2(h) such appeals shall be heard by the court of appeals "except in cases involving a first degree or capital felony," in which case, again, the appeal would be heard by this court pursuant to section 78-2-2(3)(j).

We believe that subsection 2(h) must be interpreted in light of subsection 2(g) and that it is the intent of 2(h) that the court of appeals hear appeals from orders on petitions for extraordinary writ challenging decisions of the board of pardons except when the petition additionally challenges the conviction of or sentence for a first degree felony or a capital felony. In that instance, the appeal is to be heard by this court.

In the instant case, Preece, in his petition, challenged a decision of the board of pardons made at his original parole grant hearing that fixed the length of his prison stay. We held in Labrum v. Utah State Board of Pardons, 870 P.2d 902, 911-12 (Utah 1993), that the determination made by the board of pardons at an original parole grant hearing as to the time to be served by a prison inmate is inherently a sentencing function. See also Foote v. Utah Bd. of Pardons, 808 P.2d 734 (Utah 1991) (board of pardons performs function analogous to that of trial judge in jurisdictions that have determinate sentencing scheme). Thus, Preece, on this appeal, is challenging a decision of the board of pardons and his sentence for two first degree felonies. Accordingly, his appeal lies with this court, not with the court of appeals. We therefore vacate the opinion of the court of appeals and consider this case as an original direct appeal from the district court transferred here from the court of appeals pursuant to rule 44 of the Utah Rules of Appellate Procedure.

Having determined the grounds upon which this court has...