Opinion
Case No. 20050793-CA.
Filed January 20, 2006. (Not For Official Publication).
Appeal from the Third District, Salt Lake Department, 050900800, The Honorable Timothy R. Hanson.
Robert LeRoy Ele, Draper, Appellant Pro Se.
Mark L. Shurtleff and Brent A. Burnett, Salt Lake City, for Appellees.
Before Judges Greenwood, McHugh, and Orme.
MEMORANDUM DECISION
This case is before the court on its own motion for summary disposition on the ground that the questions presented for appeal are so insubstantial so as to not merit further consideration. Ele failed to file a response to the court's motion.
Ele filed a petition for extraordinary relief under rule 65B of the Utah Rules of Civil Procedure. In his petition he set forth several issues that he believed entitled him to relief. After reviewing Ele's issues on appeal and the underlying record, we are convinced that the district court properly dismissed Ele's petition.
Two claims presented by Ele were not properly included in a rule 65B petition against the Appellees. In essence, these two claims attacked the validity of Ele's original sentence. These claims are improperly raised in a rule 65B petition against the Appellees because the Appellees had no role in sentencing Ele, nor did Appellees ever have any such power to sentence Ele. See Padilla v. Utah Bd. of Pardons Parole, 947 P.2d 664, 669 (Utah 1997) ("[W]hile the courts have the power to sentence, the Board has been given the power to pardon and parole. These are separate and distinct powers, neither of which invades the province of the other."). Such claims should have been raised in a proper petition under rule 65C of the Utah Rules of Civil Procedure. See Manning v. State, 2004 UT App 87, ¶ 18, 89 P.3d 196 (stating "rule 65B is not applicable in a challenge focused on a criminal conviction" and rule 65C governs such proceedings), aff'd on other grounds, 2005 UT 61. Thus, the district court properly dismissed Ele's claims dealing with his sentencing.
Ele's remaining claims relate to the Board's refusal to parole Ele prior to the expiration of his indeterminate sentence. Ele further complains that he has been in prison longer than the usual "matrix" for the crimes he committed. The Utah Supreme Court dismissed similar claims in Monson v. Carver, 928 P.2d 1017, 1023 (Utah 1996). Specifically, the Monson court concluded that the Utah Sentence and Release Guidelines do not create a liberty interest. See id. Further, "[s]o long as the period of incarceration decided upon by the board of pardons 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, 511 (Utah 1994). Ele's comparison of his sentence to the normal matrix is insufficient to demonstrate that his punishment was cruel and unusual. Further, Ele has failed to demonstrate that his sentence, was disproportionate and meets the standards for cruel and unusual punishment. See Monson, 928 P.2d at 1024 (stating that to demonstrate a parole decision creates a disproportionate sentence an inmate must do so in reference to three factors: gravity of the crime, sentences imposed on other individuals in this jurisdiction, and sentences imposed for the commission of the same crime in other jurisdictions). Thus, Ele fails to demonstrate that the Appellees' parole decisions constitute cruel and unusual punishment.
Accordingly, the order of the district court is affirmed.
Pamela T. Greenwood, Judge, Carolyn B. McHugh, Judge and Gregory K. Orme, Judge.