Kelly v. BOP , 288 P.3d 39 ( 2012 )

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
Ronald L. Kelly, ) PER CURIAM DECISION
)
Petitioner and Appellant, ) Case No. 20120547‐CA
)
v. ) FILED
) (October 4, 2012)
Board of Pardons, et al., )
) 2012 UT App 279Respondents and Appellees. )
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Third District, Salt Lake Department, 110913698
The Honorable L.A. Dever
Attorneys: Ronald L. Kelly, Draper, Appellant Pro Se
Mark L. Shurtleff and Brent A. Burnett, Salt Lake City, for Appellees
‐‐‐‐‐
Before Judges McHugh, Voros, and Roth.
¶1 Ronald L. Kelly appeals the trial court’s orders granting summary judgment in
favor of the Board of Pardons (Board) and denying Kelly’s postjudgment motions for
relief. This is before the court on its own motion for summary disposition based on the
lack of a substantial question for review. We affirm the court’s orders.
¶2 Kelly first asserts that the imposition of a natural life term was an illegal
enhancement of his sentence because it was beyond the statutory sentencing limits.
This assertion is the basis for many of Kelly’s claims. He is incorrect that the term of
natural life is not within the bounds of the statute. Kelly was convicted of capital
murder. In 1983, when he was sentenced, the sentencing options for this charge were
death or life imprisonment. See Utah Code Ann. § 76‐3‐206 (1978). It is clear under the
plain language of the statute that a sentence of life in prison may include the maximum
term of life in prison.
¶3 To the extent that Kelly argues that the Board’s decision to sentence him to
natural life was inappropriate, he fails to raise a substantial question for review. The
Board has the authority to determine if, when, and under what conditions an inmate
may be released on parole. See id. § 77‐27‐5(1)(a) (Supp. 2012). Decisions of the Board
regarding parole “are final and are not subject to judicial review.” Id. § 77‐27‐5(3).
Judicial review is limited only to “the fairness of the process by which the Board
undertakes its sentencing function” and does not include review of the result. Lancaster
v. Board of Pardons, 869 P.2d 945, 947 (Utah 1994). “[S]o long as the period of
incarceration decided upon by the [Board] falls within an inmate’s applicable
indeterminate range, . . . then that decision, absent unusual circumstances, cannot be
arbitrary and capricious.” Preece v. House, 886 P.2d 508, 512 (Utah 1994).
¶4 The Board has the authority, but not the obligation, to grant parole to inmates.
Terms of imprisonment “shall continue until the maximum period has been reached
unless sooner terminated or commuted” by the Board. Utah Code Ann. § 77‐18‐4(3)
(2008). “[W]hile the courts have the power to sentence, the Board has been given the
power to pardon and parole. These are two separate and distinct powers, neither of
which invades the province of the other.” Padilla v. Board of Pardons & Parole, 947 P.2d
664, 669 (Utah 1997). In setting parole dates, “the Board merely exercises its
constitutional authority to commute or terminate an indeterminate sentence that, but
for the Board’s discretion, would run until the maximum period is reached.” Id. In this
case, the Board exercised its discretion to not grant parole to Kelly and instead decided
that his term would be the maximum, life in prison. This term is within the statutory
limits and within the Board’s discretion.
¶5 Kelly also asserts that the trial court erred in dismissing his claim for
discrimination and in not permitting him to amend his petition to better support his
claim. Kelly argues that the claim was sufficiently supported in exhibits and affidavits,
but he is incorrect. His allegations are mere opinion, conjecture, and conclusions that
are not supported by facts. Furthermore, in response to the summary judgment motion,
Kelly acknowledged that the statement of undisputed facts was accurate and he did not
provide any relevant information sufficient to create a dispute of facts. Accordingly, the
trial court did not err in dismissing Kelly’s discrimination claim as unsupported.
20120547‐CA 2
¶6 Kelly argues that he should have been permitted to amend his petition to cure
the lack of sufficient factual information noted by the trial court. In the trial court, Kelly
invoked rule 60(b) of the Utah Rules of Civil Procedure to justify the request for an
amendment to his petition. Rule 60(b) does not apply to Kelly’s request. Amendments
to pleadings may be sought under rule 15, see Utah R. Civ. P. 15, but Kelly has not
shown reason to amend within that rule. Given the final ruling on the merits, any
motion to amend Kelly’s petition would be untimely. Furthermore, Kelly had the
opportunity to respond to the Board’s motion for summary judgment regardless of
what was in his petition, yet he failed to raise any issue of material fact.
¶7 Finally, Kelly argues that a change in the Board’s policy regarding eligibility to
seek reconsideration violates the prohibition on ex post facto punishments. One
function of the prohibition on ex post facto enactments is to bar laws which
retroactively increase the punishment for a crime after its commission. See Garner v.
Jones, 529 U.S. 244, 249 (2000). Retroactive changes in laws governing parole of
prisoners in some instances may violate this prohibition. See id. at 250. Not all
retroactive changes are prohibited, however. The controlling inquiry is whether a
retroactive change creates “‘a sufficient risk of increasing the measure of punishment
attached to the . . . crime[].’” Id. (quoting California Dep’t of Corr. v. Morales, 514 U.S. 499,
509 (1995)). Where a change applies only to “a class of prisoners for whom the
likelihood of release on parole is quite remote,” the change will not violate the
prohibition on ex post facto punishments. Morales, 514 U.S. at 510.
¶8 Here, given that Kelly is to serve natural life,1 he cannot show that extending the
time for him to be eligible to petition for reconsideration will create anything more than
“the most speculative and attenuated possibility of producing the prohibited effect” of
1
In both Garner v. Jones, 529 U.S. 244 (2000) and California Department of
Corrections v. Morales, 514 U.S. 499 (1995), the parole boards were statutorily required to
review inmates sentenced to life for parole at periodic intervals, thereby creating a right
to regular parole hearings even if the duration in between reviews changed. See Garner,
529 U.S. at 249; Morales, 514 U.S. at 509. In contrast, the Utah Board of Pardons and
Parole has no such requirement. The Board has the constitutional and statutory power
to determine the actual time any inmate will serve so long as it is within the bounds of
the statutory sentence, up to and including life. See Padilla v. Board of Pardons & Parole,
947 P.2d 664, 669 (Utah 1997).
20120547‐CA 3
increasing the punishment for his crime. Id. at 509. Although Kelly asserts that the
change in policy “ha[s] severely altered [his] chances at gaining parole,” the Board has
determined that he is no longer eligible for parole by imposing the sentence of natural
life. Therefore, Kelly’s “likelihood of release on parole is quite remote.” Id. at 510.
Though the Board will not address his sentence any further on its own, Kelly may
petition for reconsideration at ten‐year intervals. See Utah Admin. Code R671‐316‐1.
Kelly’s likelihood of convincing the Board that he should be released on reconsideration
is merely speculative. Therefore, extending the time before he is eligible to petition for
reconsideration does not violate the ex post facto prohibition.2
¶9 Affirmed.
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Carolyn B. McHugh, Judge
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J. Frederic Voros Jr., Judge
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Stephen L. Roth, Judge
2
Furthermore, it is not apparent that there was actually a change in policy
affecting Kelly. The policy providing that inmates with terms of natural life may
petition for redetermination at ten‐year intervals was in place ten years before Kelly
received the decision that his sentence would be natural life.
20120547‐CA 4