2017 UT App 121
THE UTAH COURT OF APPEALS
ROGER L. BRECHLIN,
Appellant,
v.
BOARD OF PARDONS AND PAROLE
AND DEPARTMENT OF CORRECTIONS,
Appellees.
Per Curiam Opinion
No. 20170224-CA
Filed July 20, 2017
Third District Court, Salt Lake Department
The Honorable James D. Gardner
No. 150908649
Roger L. Brechlin, Appellant Pro Se
Sean D. Reyes, Erin T. Middleton, and Amanda N.
Montague, Attorneys for Appellees
Before JUDGES GREGORY K. ORME, DAVID N. MORTENSEN, AND
JILL M. POHLMAN.
PER CURIAM:
¶1 Roger L. Brechlin appeals the entry of summary judgment
on his petition seeking extraordinary relief directed to the Board
of Pardons and Parole (the Board). We affirm.
¶2 Brechlin received an indeterminate sentence of fifteen
years to life in prison following his 1991 conviction for
aggravated sexual assault, a first degree felony. The Board
released him on parole in 2010. Among other things, Brechlin’s
parole agreement precluded him from being in possession of a
dangerous weapon.
Brechlin v. Board of Pardons and Parole
¶3 Three and a half years later, Brechlin was arrested after
some campers reported to police that they saw Brechlin running
through their campsite several times—sometimes naked—
carrying a knife and a plastic baseball bat. 1 When the police
found him, Brechlin was wearing only boots and two shirts tied
around his waist. Brechlin pleaded guilty to possession of a
dangerous weapon by a restricted person, a third degree felony,
and was sentenced to an indeterminate term of not to exceed five
years. The admitted facts also constituted a parole violation.
¶4 Following his guilty plea, Brechlin appeared before the
Board for a “parole violation/original hearing.” At that hearing,
Brechlin acknowledged that he received notice of the hearing
and a copy of the information packet provided to the Board.
That information included a post-sentence memorandum.
Brechlin testified that he had been in possession of the knife and
that he took responsibility for such possession. Brechlin told the
Board’s hearing officer that he had been depressed after learning
that his girlfriend was leaving him and after receiving a
diagnosis of emphysema, and that his behavior was caused by
his depression. Brechlin stated that he had never been depressed
before, but after his arrest, he was diagnosed with chronic
depression. He had been in counseling for six months at the time
of the hearing. He stated that he had never experienced mental
health issues before and it was the first time he had ever been in
any type of counseling.
1. Although Brechlin has disputed reports that he was naked,
any dispute regarding the exact state of Brechlin’s undress is not
relevant to any issue in this appeal. Similarly, Brechlin’s claim
that he had permission to possess the knife constitutes a
collateral attack on his conviction that cannot be raised in a
petition for extraordinary relief challenging the Board’s actions.
See Utah R. Civ. P. 65B(d)(2) (allowing relief “where the Board of
Pardons and Parole has exceeded its jurisdiction or failed to
perform an act required by constitutional or statutory law”).
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Brechlin v. Board of Pardons and Parole
¶5 The Board revoked Brechlin’s parole from his 1991
conviction and sentence for aggravated sexual assault and
scheduled him for a hearing in July 2023. The Board ordered him
to complete a sex offender treatment program before the 2023
hearing. Brechlin filed a petition seeking extraordinary relief
against the Board and the Department of Corrections (the
Department). Brechlin raised two basic claims in the petition:
(1) the Board violated his due process rights by setting a
rehearing date that exceeds the Board’s sentencing guidelines;
and (2) the Board made its decisions without all of the necessary
information and therefore failed to properly consider Brechlin
for release on parole. The Board and the Department moved for
summary judgment on the petition for extraordinary relief.
¶6 The district court granted summary judgment on
Brechlin’s claim that the Board violated his due process rights by
deviating from its sentencing guidelines. The district court
concluded that under Utah law, the state sentencing guidelines
used by the board of pardons do not have the force and effect of
law. See Preece v. House, 886 P.2d 508, 511 (Utah 1994). Thus, the
district court concluded that, while the guidelines reflect
estimates of what may be a typical term, the Board retains full
discretion to determine incarceration terms on an individual
basis considering the unique facts of each case. See Godfrey v.
Board of Pardons, 2013 UT App 171, ¶ 6, 306 P.3d 852 (per
curiam).
¶7 The district court did not err in granting summary
judgment on this claim. In addition to the fact that the
sentencing guidelines are not binding on the Board, Brechlin
fails to acknowledge that the new conviction was also a parole
violation on his 1991 conviction for aggravated sexual assault,
for which Brechlin received an indeterminate sentence of up to
life in prison. Brechlin’s claim is based on the sentencing matrix
for his new conviction for possession of a dangerous weapon
only, and neither the sentencing guidelines nor the matrix
estimates the sentence for a parole violation. Furthermore,
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Brechlin v. Board of Pardons and Parole
contrary to Brechlin’s assertions, the commission of the new
offense was not merely a “technical” violation of his parole.
¶8 The district court also granted summary judgment on
Brechlin’s claim that the Board made its decision without
obtaining all relevant information and failed to properly
consider Brechlin for release. The district court concluded, based
on the undisputed facts, that the Board had all of the pertinent
information, including information that was favorable to
Brechlin. In addition, Brechlin was allowed to present
information directly to the Board’s hearing officer. The district
court construed Brechlin’s claim as a disagreement with the
Board’s weighing of the evidence in reaching its decision.
However, “[t]he weight given to the evidence is within the
Board’s discretion in making its final determination and is not
subject to judicial review.” Maguire v. Bigelow, 2013 UT App 221,
¶ 2 n.1, 310 P.3d 765 (per curiam) (citing Lancaster v. Board of
Pardons, 869 P.2d 945, 947 (Utah 1994)). Thus, the district court
ruled that Brechlin’s disagreement with the Board’s parole
decision did not entitle him to extraordinary relief and that
therefore the Board and the Department were entitled to
summary judgment.
¶9 Furthermore, the district court also denied Brechlin’s
request under rule 56(d) of the Utah Rules of Civil Procedure for
a continuance to conduct discovery. The court stated that rule
56(d) requires a party seeking a continuance to demonstrate “by
affidavit or declaration that, for specified reasons, it cannot
present facts essential to justify its opposition.” Thus, “[p]arties
must offer more than conclusory assertions to demonstrate the
existence of a genuine issue for trial, and cannot justify further
discovery without providing a viable theory as to the nature of
the facts they wish to obtain.” Grynberg v. Questar Pipeline Co.,
2003 UT 8, ¶ 57, 70 P.3d 1 (citation and internal quotation marks
omitted). Because Brechlin failed to identify what evidence he
needed or how it would aid his opposition to summary
judgment, the district court denied his rule 56(d) request. On
20170224-CA 4 2017 UT App 121
Brechlin v. Board of Pardons and Parole
appeal, Brechlin lists, for the first time, the items he claims he
wanted to obtain in discovery. However, because he did not first
present that information to the district court, and does not
demonstrate why that information would have provided him a
basis on which to oppose summary judgment, Brechlin fails to
demonstrate that the district court erred in denying this request.
The district court also did not err by declining to hold a hearing
on the motion for summary judgment where Brechlin did not
request one.
¶10 Judicial review of the Board’s decisions is limited. Padilla
v. Board of Pardons, 947 P.2d 664, 671 (Utah 1997). Utah Code
section 77-27-5(3) provides, in relevant part, that “[d]ecisions of
the board in cases involving paroles, pardons, commutations, or
terminations of sentence . . . are final and are not subject to
judicial review.” Utah Code Ann. § 77-27-5(3) (LexisNexis Supp.
2016). Judicial review “is limited to the process by which the
Board undertakes its sentencing function.” Padilla, 947 P.2d at
671 (citation and internal quotation marks omitted). A court
“must review the fairness of the process by which the Board
undertakes its sentencing function, but we do not sit as a panel
of review on the result, absent some other constitutional claim.”
Lancaster, 869 P.2d at 947.
¶11 In the district court, and on appeal, Brechlin’s essential
disagreement is with the Board’s decision regarding his parole
date and the weight that the Board assigned to certain mitigating
factors. “The weight given to the evidence is within the Board’s
discretion in making its final determination and is not subject to
judicial review.” Maguire, 2013 UT App 221, ¶ 2 n.1. Brechlin
argued that the Department had a duty to produce mental health
records to the Board and that the Board had a duty to seek
further information on his mental health. However, it was
undisputed the Department did not have any mental health
records for Brechlin pre-dating his arrest for the new offense. In
support of the summary judgment motion, the Board provided a
sworn affidavit from a supervisor at Adult Probation & Parole
20170224-CA 5 2017 UT App 121
Brechlin v. Board of Pardons and Parole
(AP&P), who had reviewed AP&P’s records from supervision
Brechlin for twenty-five years. That affidavit stated that there
was no record of any mental health issues in the files maintained
by AP&P. Brechlin did not dispute the facts relating to the
contents of the records maintained by AP&P.
¶12 In addition, the Board’s hearing officer heard Brechlin’s
testimony that (1) he had been diagnosed with depression only
after his arrest, (2) he was seeking treatment, and (3) he believed
his depression was the reason for the behavior that led to his
arrest on the weapons offense and the resulting parole violation.
Although Brechlin claimed before the district court that he had
permission to carry a knife, he did not make that claim in the
hearing before the Board’s hearing officer where he stated that
he took responsibility for possessing the weapon. Brechlin has
not demonstrated that the Board failed to consider pertinent
information or that the Department failed to provide
information. He attempts to characterize the claims as due
process violations, but the claims are essentially challenges to the
substance of the Board’s decision, which are outside the scope of
judicial review. Accordingly, the district court properly granted
summary judgment in favor of the Board and the Department.
¶13 Affirmed.
20170224-CA 6 2017 UT App 121