Opinion
Court of Appeals No. A-9687.
January 30, 2008.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Richard D. Savell, Judge, Trial Court No. 4FA-04-2707 CI.
Robert E. Duyck, pro se, Red Rock Correctional Center, Arizona. Marilyn J. Kamm, Assistant Attorney General, Criminal Division Central Office, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
In 1996, Robert E. Duyck was convicted, after pleading no contest, of murder in the second degree. Superior Court Judge Richard D. Savell sentenced Duyck to 25 years of imprisonment. In July 2004, the Alaska Board of Parole denied Duyck's application for discretionary parole. In November 2004, Duyck filed a petition for post-conviction relief challenging the Board's decision. In April 2005, Judge Savell granted the State's motion to dismiss the post-conviction relief petition. Duyck appeals.
AS 11.41.110(a)(2).
In his application for discretionary parole, Duyck contested the evidence that the State presented at the grand jury proceeding. Duyck set forth a version of the offense, including an explanation of DNA evidence that he asserts exonerates him. The Parole Board, however, does not have to consider a defendant's assertions of innocence. This court has stated that when an inmate comes before the Parole Board, he "stands finally convicted of engaging in [the criminal act]; the issue of his guilt [is] not open to relitigation before the parole board." Therefore, the Board was "entitled to rely on the fact of [Duyck's] conviction to conclude that he had in fact [committed second-degree murder]." In July 2004, the Parole Board denied Duyck's parole for the remainder of his sentence.
Covington v. State, 938 P.2d 1085, 1090 (Alaska App. 1997).
Id.
Duyck filed a petition for post-conviction relief. In his petition, Duyck challenged the Parole Board's decision denying his application for discretionary parole. Duyck argued that the Department of Corrections' guidelines required a minimum of only 100 months of imprisonment, but that he had served 103 months; Duyck essentially argued that because his conduct while in custody was commendable, the Parole Board erred in failing to grant his parole.
In his petition for post-conviction relief, Duyck did not assert that the Parole Board violated his right to due process, failed to consider the statutory criteria set forth in AS 33.16.100(a), or even that the Parole Board failed to consider his purported innocence. Instead, Duyck's entire argument rested upon the fact that he had served the mandatory minimum for parole eligibility, that he extensively participated in rehabilitative programs, and that his parole officer stated that his compliance in custody was commendable. Judge Savell granted the State's motion to dismiss the petition for post-conviction relief.
Why we affirm Judge Savell's decision
In Frank v. State, we held that AS 33.16.130(c) required the Parole Board to specify its reasons for denying discretionary parole in sufficient detail to allow meaningful judicial review and to convey to inmates the reasons for the denial. We review the Parole Board's factual findings to determine whether they are supported by substantial evidence. We review the Parole Board's discretionary authority under the reasonable basis standard to insure that the Board's determinations are supported by evidence in the record as a whole and there is not an abuse of discretion.
97 P.3d 86 (Alaska App. 2004).
Id. at 90.
Alexander v. State, 38 P.3d 543, 545 (Alaska App. 2001) (citing Covington, 938 P.2d at 1090-91).
Id.
The Parole Board, in a letter to Duyck on February 4, 2005, explained its reasons for denying Duyck's application for mandatory parole:
This denial was based upon the fact that the Board feels your release on discretionary parole would not be in the best interest of public protection. You have a very long history of violent, assaultive behavior, culminating in this murder. This is of grave concern to the Board. Your parole officer points out that although you have done well while confined, your history of behavior while on supervision is abysmal.
The Board was also concerned that you take no responsibility for your crime and flatly refused to participate in a substance abuse treatment program (Wildwood RSAT) recommended by both your parole officer and the parole board members.
Lastly, the Board felt that your release plan was inadequate and unacceptable to address the safety of the public and the structure and close supervision you require.
The Parole Board's factual findings are supported by substantial evidence, and the Parole Board set out a reasonable basis for denying Duyck's discretionary parole. The Parole Board did not abuse its discretion in denying Duyck's application for discretionary parole. We conclude that Judge Savell did not err when he denied Duyck's petition for post-conviction relief.