Opinion
Case No. 20021025-CA.
Filed October 17, 2003. (Not For Official Publication)
Appeal from the Third District, Salt Lake Department, The Honorable William B. Bohling.
Bryon D. Petersen, Draper, Appellant Pro Se.
Mark Shurtleff and Natalie A. Wintch, Salt Lake City, for Appellees.
Before Judges Jackson, Greenwood, and Orme.
Appellant Bryon D. Petersen appeals the denial of his petition for extraordinary relief challenging decisions of the Utah State Board of Pardons denying him parole. This case is before the court on a sua sponte motion for summary disposition.
It is undisputed that Petersen is presently incarcerated only pursuant to an indeterminate sentence of five years to life based upon a 1982 conviction of aggravated burglary. He was paroled in 1988, but his parole was revoked in 1989 based upon his commission of the offenses of aggravated burglary, attempted homicide, and possession of a firearm by a restricted person. The present petition raises claims similar to those considered and rejected by the Utah Supreme Court in Petersen v. Board of Pardons, 907 P.2d 1148 (Utah 1995). In that case, Petersen claimed that the Board had no authority to revoke his parole after the Utah Supreme Court reversed, on procedural grounds, convictions based upon the same facts that supported the probation revocation. See id. at 1153. The supreme court held that the "reversal did not undermine or in any way call into question the factual findings of his guilt." Id. at 1154. Accordingly, "a reversal of a criminal conviction does not have the effect of reversing a parole revocation order based on the same facts."Id.
Petersen filed the present petition challenging the Board's refusal to grant parole and what he perceives to be his continued incarceration on convictions that were reversed, or as to which he served his entire sentence. He also complained that he had been prejudiced by an error in the criminal history maintained by the Board, which was later corrected. Petersen contends in this appeal that his 1973 rape conviction is not an ongoing conviction and his remaining convictions, for the offenses committed in 1989, are "all vacated and no longer exist as a matter of law" and therefore cannot be considered in denying him a parole date. These claims are a variation of claims previously rejected by the Utah Supreme Court.
Peterson was convicted of rape in 1973 and has completed serving the sentence on that offense.
Judicial review of the Board's decisions is limited to the process by which the Board undertakes its function, and this court cannot review the merits of the determination. See, e.g., Padilla v. Board of Pardons, 947 P.2d 664, 671 (Utah 1997). In determining whether to grant parole, the Board may consider Petersen's criminal history, including the 1973 rape conviction and the convictions for aggravated assault, attempted murder, and aggravated robbery. See Shabazz v. Keating, 977 P.2d 1089, 1094 (10th Cir. 1999) (stating "the board is the sole judge of what may be considered in the decision making process"). This is underscored by the supreme court's holding in Petersen v. Board of Pardons that the reversed convictions could be considered in parole revocation proceedings. 907 P.2d at 1154. Petersen did not claim, nor demonstrate, that he was denied the procedural protections mandated for original parole grant hearings. See Labrum v. State Board of Pardons, 870 P.2d 902 (Utah 1993) (requiring timely notice of hearings and provision of copies of information from the inmate's file in advance of hearing). We conclude that the Board did not violate Petersen's procedural rights in considering Petersen's criminal history, including convictions reversed on appeal.
Although the criminal history maintained by the Board contained an error in reporting an attempted murder conviction as a murder conviction, the district court correctly concluded that Petersen had not demonstrated that this error, which has since been corrected, resulted in prolonging his sentence or denying him parole. Finally, after filing his appeal, Petersen has contended that his file has been "cross-contaminated" with materials from the file of another inmate with a similar name. This claim was not presented to, or considered by, the district court and will not be considered for the first time on appeal.
We affirm the district court's dismissal of the petition for extraordinary relief.
Norman H. Jackson, Presiding Judge, Pamela T. Greenwood, Judge, and Gregory K. Orme, Judge.