Opinion
Case No. 20000807-CA.
Filed March 22, 2001. (Not For Official Publication)
Appeal from the Third District, Salt Lake Department, The Honorable Leon A. Dever.
Travis Edward Telford, Draper, Appellant Pro Se.
Mark L. Shurtleff and Sharel S. Reber, Salt Lake City, for Appellee.
Before Judges Greenwood, Jackson, and Davis.
MEMORANDUM DECISION
Travis Edward Telford (Telford) appeals the trial court's dismissal of his petition for extraordinary relief. Telford argues that the Board of Pardons (Board) exceeded its authority by setting his parole date for 2018 and that the Board wrongly extended his parole date because he refused to testify against his co-defendant. We reject both arguments.
Telford was convicted of murder, a first degree felony. His 2018 parole date is within the indeterminate range of his sentence — five years to life. See Preece v. House, 886 P.2d 508, 512 (Utah 1994) (stating "so long as the period of incarceration decided upon by the board of pardons falls within an inmate's applicable indeterminate range, e.g., five years to life, then that decision, absent unusual circumstances, cannot be arbitrary and capricious"). Accordingly, Telford's constitutional rights were not violated by the Board's decision. Moreover, in exercising its parole power, the Board was not engaged in a sentencing function, nor did it violate the separation of powers. The Utah Supreme Court has held that "the Board's exercise of its parole power in setting determinate parole dates does not violate the separation of powers doctrine of article V, section 1 of the Utah Constitution." Padilla v. Utah Bd. of Pardons and Parole, 947 P.2d 664, 669 (Utah 1997).
Evidence was introduced at Telford's original parole hearing, including Telford's own admission, that he refused to testify at his co-defendant's trial. The Board's consideration of Telford's refusal to testify, as well as other aggravating factors (the nature of his offense, the vulnerability of his victim, his prison disciplinary problems, and his defiance of authority), in setting a parole date is within its discretionary function and not subject to judicial review. See Northern v. Barnes, 825 P.2d 696, 699 (Utah Ct.App. 1992) (stating Board has right to rely on any factors known or later adduced and determine weight to be given such factors in deciding whether probationer poses risk to society); see also Utah Code Ann. § 77-27-5(3) (1999) ("Decisions of the Board of Pardons in cases involving paroles, pardons, commutations or terminations of sentence, restitution, or remission of fines or forfeiture are final and are not subject to judicial review.").
Accordingly, we affirm the trial court's dismissal of Telford's petition.
Pamela T. Greenwood, Presiding Judge, Norman H. Jackson, Associate Presiding Judge, James Z. Davis, Judge.