author: BILLINGS, Associate Presiding Judge:

text:
    2003 UT App 398
    David Ernest MONTOYA, Petitioner and Appellant, v. M.R. SIBBETT, Don Blanchard, Curtis Garner, Cheryl Hansen, and Keith Hamilton, members of Utah Board of Pardons and Parole in their official capacities; and Utah Board of Pardons and Parole, Respondents and Appellees.
    No. 20030381-CA.
    Court of Appeals of Utah.
    Nov. 21, 2003.

      Carolyn Pence, DeRae Preston, Robert B. Denton, and John Pace, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Atty. Gen., and Sharel S. Reber, Asst. Atty. Gen., Salt Lake City, for Appellees.
    Before BILLINGS, Associate P.J., BENCH and THORNE, Jr., JJ.
   OPINION

BILLINGS, Associate Presiding Judge:

1 David Montoya appeals the trial court's denial of his Petition for Extraordinary Relief and grant of the Board of Pardons's (the Board) Cross Motion for Summary Judgment. Montoya asserts the district court erred in concluding the Board did not err in denying Montoya credit for time served at the Utah State Hospital (the state hospital). We reverse and remand and order Montoya be given credit for the 267 days he spent at the state hospital.

BACKGROUND

T2 On December 12, 1988, Montoya was convicted of attempted rape, a second degree felony, and sentenced to the Utah State Prison (the prison) for an indeterminate term of not less than one year and not more than fifteen years. Montoya's sentence was originally set to expire on or before December 11, 2008.

¶3 In early 1992, Montoya filed a petition for mental incompetency proceedings under Utah Code Annotated section 77-15-38 (1992), which resulted in court-ordered mental evaluation reports pursuant to Utah Code Annotated section 77-15-5(2) and (8) (1992) On April 21, 1992, the court found that, based on those mental evaluation reports, Montoya was "incompetent to understand the nature of the punishment he is serving .... [in that] he is suffering from a mental disease or defect resulting in his [injability to comprehend the nature of the punishment specified for the offense charged." Thus, pursuant to Utah Code Annotated section 77-15-6 (1994), the court ordered Montoya committed to the state hospital with "[clredit for time served to be determined by the Board of Pardons."

¶4 On January 19, 1998, upon a finding of competency, the court ordered Montoya to be returned to the prison to serve the remainder of his sentence. The Board conducted a paper review of Montoya's case on February 27, 1996, and set a rehearing for August 1996 with an alienist report due prior to the hearing. On August 8, 1996, Montoya received his Board disclosure file and signed a form acknowledging receipt. The rehearing was held on August 13, 1996. The Board determined Montoya would not receive credit against his prison sentence for the 267 days he served at the state hospital and set his release date for September 4, 2004. The order was signed December 3, 1996.

T5 On August 11, 2000, Montoya filed a Petition for Extraordinary Relief. On October 1, 2002, Montoya filed a Motion for Summary Judgment asserting the Board may not lengthen an already-sentenced inmate's maximum prison sentence by denying credit for time served at the state hospital. In response, the Board filed a Cross Motion for Summary Judgment arguing the Board properly denied Montoya credit for time served at the state hospital. The court granted the Board's motion, denied Montoya's, and dismissed Montoya's Petition for Extraordinary Relief. Montoya appeals the court's order.

ISSUE AND STANDARD OF REVIEW

T6 Montoya argues the district court erred in granting the Board's motion for summary judgment. Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Utah R. Civ. P. 56(c). "To determine whether a trial court properly granted summary judgment, we review the trial court's legal

conclusions for correctness, affording those legal conclusions no deference." Ault v. Holden, 2002 UT 38,¶ 15, 44 P.3d 781. However, when reviewing an appeal from a dismissal of a habeas corpus petition, the record is reviewed in 'the light most favorable to the findings and judgment and will not be reversed "if there is a reasonable basis therein to support the trial court's refusal to be convinced that the writ should be granted." Northern v. Barnes, $70 P.2d 914, 915 (Utah 1993) (quotations and citations omitted).

ANALYSIS

17 Montoya argues the trial court erroneously upheld the Board's decision to deny credit for the time Montoya spent at the state, hospital where the commitment occurred after Montoya began serving his prison sentence. Generally, it is the Board's "exclusive authority to 'determine the actual number of years a defendant is to serve,' " Preece v. House, 886 P.2d 508, 512 (Utah 1994) (citations omitted), and the court does not "sit as a panel of review on the result, absent some other constitutional claim. Lancaster v. Board of Pardons, 869 P.2d 945, 947 (Utah 1994). However, we have held that because the Board serves as a sentencing entity in our system, the Board, like the courts, " 'is governed by constitutional requirements addressing accuracy and fairness in the decision-making process." Thus, while the Board exercises unfettered discretion in determining the length of an inmate's sentence, its actions must not violate the inmate's constitutional rights." Rawlings v. Holden, 869 P.2d 958, 961 (Utah Ct.App. 1994) (citations omitted).

T8 In State v. Fife, 911 P.2d 989 (Utah Ct.App.1996), we affirmed the trial court's refusal to grant credit for an offender's time spent at the state hospital pursuant to a court order pending his return to competency. See id. at 995. Once competent, Fife was sentenced to one year in prison for pleading guilty to forcible sexual abuse. See id. at 990. The trial court refused to give him credit for 265 days he spent at the state hospital. See id. The defendant in Fife relied upon Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 485 (1972), to support his assertion that the trial court's ruling denying him credit for time served at the state hospital violated his due process rights. See Fife, 911 P.2d at 998. In Jackson, the United States Supreme Court held that because it was unlikely the defendant in that case would ever regain his sanity, the pre-conviction commitment to a mental hospital was equivalent to a sentence of life imprisonment. See Jackson, 406 U.S. at 725, 92 S.Ct. at 1851. The Court stated

a person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant.

Id. at 788, 92 S.Ct. at 1858. However, in Fife, we held the refusal to grant credit for such time did not violate due process under Jackson in that Fife could not be held an unreasonable period of time because of the safeguards of Utah Code Annotated section (1995). This statute provides, " In no event may the maximum period of detention under this section exceed the maximum period of incarceration which the defendant could receive if he were convicted of the charged offense" " Fife, 911 P.2d at 994 (quoting Utah Code Ann. § 77-15-6(18)). We further stated that by enacting section 7i-15-6(18), the Utah Legislature made certain that the situation faced by the defendant in Jackson could not occur in Utah. See id. at 993-94. Accordingly, we concluded "this procedural safeguard [is] sufficient to meet the fairness requirements of due process as discussed in Jackson." Id. at 994.

19 Subsection (18) was added as a 1994 amendment. See Utah Code Ann. § 77-15-6 (1994) (Amendment Notes). Thus, when Montoya was committed to the state hospital in 1992, section 77-15-6 did not contain this safeguard. See Utah Code Anu. § 77-15-6 (1992). Furthermore, section 77-15-6 by its terms only applies to "persons incompetent to stand trial." Id. § 77-15-6(1) (1992). Thus, because Montoya was convicted, sentenced, and was serving his sentence in prison prior to being adjudicated mentally incompetent, he would not have been protected by this statute in any event. Also in Fife, we emphasized that Fife's due process was not violated because the length of his total confinement in prison and at the state hospital did not exceed the maximum possible sentence for the charged offense. See Fife, 911 P.2d at 994 n. 6.

I 10 Unlike the defendant in Fife, the 267 days Montoya served at the state hospital plus his fifteen-year commitment in prison exceeds the maximum sentence for the charged offense.

T11 We see no reason to distinguish between defendants adjudicated incompetent prior to conviction and sentencing and those adjudicated incompetent subsequent to conviction and sentencing. For both groups, due process requires that the maximum period of detention not exceed the maximum period of incarceration for the charged offense.

{12 This view is consistent with authority from other jurisdictions applying the safeguards of Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 485 (1972). Cases relying upon Jackson have held that a defendant in a mental facility must be released at the expiration of the maximum sentence for the underlying offense or be civilly committed. See State ex rel. Deisinger v. Treffert, 85 Wis.2d 257, 270 N.W.2d 402, 405-06 (1978) (citing United States v. Ecker, 548 F.2d 178, 188 (D.C.Cir.1976);, Waite v. Jacobs, 445 F.2d 392, 399 (D.C.Cir.1978)).

{13 In addition, the Wisconsin Supreme Court stated:

We find no factually distinguishing features between an incompetent to stand trial and an acquittee by reason of insanity, a convicted sex offender or one under observation as a mentally defective delinquent. In all cases the initial custodial warehousing of such persons in a mental facility is without due process guarantees accorded a civil committee. The inescapable conclusion must be that the expiration of the maximum penalty period under the offense charged is a critical date at which the state must make a determination as to the continued confinement of an incompetent charged with a misdemeanor or minor felony to stand trial. Further, that continued confinement can proceed only after the incompetent has been given the due process guarantees accorded civil committees.

Deisinger, 270 N.W.2d at 406.

114 The State argues that Rawlings v. Holden, 869 P.2d 958 (Utah Ct.App.1994), controls this case. We disagree. In Raw!-ings, we held "a district court does not generally have the authority to order the Board of Pardons to credit an inmate's sentence with time served as a condition of probation." Id. at 961. The trial court sentenced Rawl-ings to an indeterminate sentence of five years to life for attempted sodomy on a child but stayed the sentence and placed Rawlings on probation for eighteen months. See id. at 959. As part of his probation agreement, Rawlings was to enter and complete the long-term sex offender program at the state hospital. See id. at 960. At the end of the probation period, the trial court extended his probation so that he could finish the sex offender program. See id. Rawlings failed to complete the program, and consequently, the trial court revoked his probation and committed him to the prison under his original sentence. See id. While the trial court recommended to the Board that Rawlings be given credit for the time he spent at the state hospital, the Board declined to do so. See id.

15 Rawlings filed a habeas corpus petition in the district court. See id. The habe-as court granted Rawlings's petition and ordered the Board to grant Rawlings credit for time served at the state hospital. See id. On appeal, we concluded "time served in a secured treatment program as a condition of probation is just that, a condition of probation, and is not equivalent to time served in prison as punishment for committing a crime." Id. at 961 (emphasis added). Accordingly, we held there was no violation of fundamental fairness when the Board refused to grant credit for time served as a condition of probation. See id. at 962.

116 Montoya argues Rawlings is inapplicable to his case because Rawlings was denied credit for time spent at the state hospital while on probation under the jurisdiction of the trial court, not under the jurisdiction of the Board while sentenced to prison. We agree. In Rawlings, we reasoned that it is not a violation of due process for the Board to refuse to grant an inmate credit for time served in the state hospital as a condition of probation against his prison sentence because doing so "lessens the effectiveness of ordering such time as a condition of probation by removing the incentive for the probationer to successfully complete the ordered time in order to avoid serving his prison sentence." Id. Montoya was not committed to the state hospital as a condition of probation. Montoya did not "enter[ ] into an agreement with the sentencing court to comply with the conditions of probation as established by that court in exchange for not having to serve a prison sentence" as Raw!-ings did. Id. at 961. After conviction and sentencing, Montoya petitioned the court for mental incompetencey proceedings and was subsequently committed to the state hospital for mental health treatment. As our supreme court noted,

However well intended, the confinement of a person in an institution for mental health treatment is just as effective a restraint on personal liberty as confinement in a prison and may ... be even more trying or burdensome. It is therefore essential that the rights of one so confined be treated with the same degree of respect as are the rights of persons deprived of their liberty upon accusation or conviction of criminal conduct.

In re Wahlquist, 585 P.2d 487, 489 (Utah 1978). Because Montoya was not committed to the state hospital as a condition of probation, Rawlings does not apply. Furthermore, like Fife's confinement, the length of Rawlings's confinement did not exceed the maximum possible sentence he could have received for the charged offense. Thus, in Rawlings, no violation of due process occurred. See Rowlings, 869 P.2d at 962.

117 The State asks us to adopt a policy that would allow the Board to deny credit for time served in the state hospital that, together with the time served in prison, exceeds the maximum possible sentence for the charged offense. Under this approach, it is possible that Montoya could have served fifteen years in prison plus an indefinite period in the state hospital without violating due process simply because he was committed to the state hospital after sentencing. We are unwilling to adopt such a rule. If Montoya is not released until September 4, 2004, he will have served his maximum sentence of fifteen years in prison plus 267 days in the state hospital. We conclude that denying Montoya credit for time served in the state hospital that, together with the time served in prison, exceeds the maximum sentence for the charged offense violates his right to due process. See Jackson v. Indiana, 406 U.S. 715, 738-89, 92 S.Ct. 1845, 1858, 82 L.Ed.2d 485 (1972)

CONCLUSION

T18 We conclude Montoya's due process rights were violated when the Board refused to grant Montoya credit for the 267 days he was confined in the state hospital in excess of his one-to-fifteen-year sentence. Therefore, we reverse and remand and order that Montoya's original release date of December 11, 2003 be reinstated.

¶19 WE CONCUR: RUSSELL W. BENCH and WILLIAM A. THORNE JR., Judges.

      . This statute provides in relevant part:
      (1) Whenever a person who is charged with a public offense, or who is serving a sentence of imprisonment, is or becomes incompetent as defined in this chapter, a petition may be filed in the district court of the county where the charge is pending or where the person is confined.
      Utah Code Ann. § 77-15-3 (1992) (emphasis added).

      . These subsections provide:
      (2) Prior to the hearing, the court may order the Department of Human Services to examine the person and to report to the court concerning his mental condition.
      (3) Upon completion of the evaluation or examination under Subsection (2), a written report shall be submitted to the court setting forth the opinion of the department or the person or agency directed by the department to conduct the examination, as to the mental condition of the person. The report shall state the facts relied on as the basis for the opinion and shall be made available to the prosecuting and defense attorneys.
      Tiah Code Ann. § 77-15-5(2) to (3) (1992).

      . Utah courts have uniformly held the Board has discretion to determine whether or not credit should be granted for time served. See Sampley v. Morris, 632 P.2d 837, $39 (Utah 1981) (upholding the Board's denial of credit for time served out-of-state while on escape from Utah); Andrus v. Turner, 29 Utah 2d 338, 339, 509 P.2d 363, 364-65 (1973) (upholding the Board's denial of credit for time served to prisoner awaiting extradition while incarcerated in another state); Ontiveros v. Board of Pardons, 897 P.2d 1222, 1224 (Utah Ct.App.1995) (upholding the Board's denial of credit for time served for out-of-state incarceration}.

      . Our decision today does not affect the civil commitment procedures under Uiah Code Annotated sections 62A-15-628, -629, -631 (Supp. 2003). If ai the time of his release Montoya is considered a danger to himself or others, the State may pursue an involuntary commitment to the state hospital or other mental health facility. See id. §§ 62A-15-628, -629, -631.


source: Caselaw Access Project

author: JACKSON, Presiding Judge:

license: Public Domain

text:
    2003 UT App 402
    James Harleston LINDEN, Petitioner and Appellant, v. STATE of Utah, DEPARTMENT OF CORRECTIONS; and State of Utah, Board of Pardons and Parole, Respondents and Appellees.
    No. 20020912-CA.
    Court of Appeals of Utah.
    Nov. 21, 2003.

      Grant W.P. Morrison, Morrison & Morrison LC, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Atty. Gen., and Patrick B. Nolan, Asst. Atty. Gen., Salt Lake City, for Appellees.
    Before JACKSON, P.J., BILLINGS, Associate P.J., and GREENWOOD, J.
   OPINION

JACKSON, Presiding Judge:

11 James Linden appeals the district court's dismissal of his petition for extraordinary relief. We affirm.

BACKGROUND

2 James Linden was convicted in Utah on September 19, 1987 of aggravated robbery, theft, and possession of a firearm. At the time of his convictions, Linden was on parole for various offenses that he had previously committed in California. As a result of his Utah convictions, Linden's California parole was revoked and he was extradited to California to complete the term of his prior California sentence. After completing the term of imprisonment due in California, Linden was transferred to the Utah State Prison to serve the sentences that had been imposed for his 1987 crimes.

T3 On January 26, 1996, Linden was placed on parole by the Utah Board of Pardons and Parole (the Board). He subsequently violated the terms of this parole, however, and his parole was revoked. On January 27, 1998, he was again paroled from the Utah State Prison. As a condition for his release on parole, Linden was required to sign a parole agreement. Condition three of that agreement (condition three) required Linden to promise that "I will obey all State, Federal, and municipal laws."

T4 On December 22, 1998, Linden was arrested by Idaho authorities on charges relating to a murder that had been committed there in 1986. In July 1999, Linden pleaded guilty to one count of accessory to murder in the first degree in violation of Idaho Code section 18-205 (1994). Pursuant to that plea, Linden admitted to having knowledge that the murder had been committed and to having withheld and concealed that knowledge from law enforcement authorities. As a result of this plea, Linden was sentenced to a determinate term of two years imprisonment, with credit for time served.

5 Upon completion of his Idaho sentence, Linden was extradited back to Utah and charged with having violated the conditions of his parole. The parole violation report prepared by Utah authorities alleged that Linden had violated "condition number three of the Parole Agreement." On August 30, 2000, the Board held a parole revocation hearing. On October 3, 2000, the Board issued an order revoking Linden's parole. The Board's order stated that the reason for the parole revocation was a "parole agreement violation." On May 14, 2001, Linden filed a petition for extraordinary relief with the district court. That petition was dismissed by the court on October 11, 2002. Linden appeals.

STANDARD OF REVIEW

16 When reviewing an appeal from a dismissal of a petition for extraordinary relief, "we accord no deference to the conclusions of law that underlie the dismissal." Neel v. Holden, 886 P.2d 1097, 1100 (Utah 1994).

ANALYSIS

T7 Linden argues that the decision of the Board to revoke his parole based on his conviction in Idaho was unlawful, insofar as his violation of Idaho law allegedly occurred before he entered into the parole agreement with the State of Utah. In response, the State argues that we are precluded from reviewing the decision of the Board by Utah Code Annotated section 77-27-58) (1999).

T8 Given its jurisdictional nature, we first address the State's argument that judicial review is inappropriate. We disagree with the State's contention on this point and instead conclude that we are constitutionally authorized to conduct a substantive review of the Board's parole revocation decisions. However, considering the particular facts of this case, we conclude that there was sufficient evidence for the Board to determine that Linden's ongoing eriminal conduct in Idaho violated the conditions of his parole agreement and that the decision to revoke his parole was appropriate.

I. Jurisdiction

T9 Under the terms of Utah's indeterminate sentencing system, the Board is given a wide degree of discretion in determining how much of a sentence a convicted person must serve. The Utah Code thus states that "[the Board of Pardons and Parole shall determine ... when and under what conditions ... persons committed to serve sentences ... may be released upon parole ...." Utah Code Ann. § 77-27-5(1)(a) (1999). Explaining this statutory scheme, the Utah Supreme Court has stated that "the judge does not determine the number of years the defendant will spend [in prison]. That is left to the unfettered discretion of the board of pardons." Labrum v. Utah State Bd. of Pardons, 870 P.2d 902, 908 (Utah 1993) (quoting Foote v. Utah Bd. of Pardons, 808 P.2d 734, 735 (Utah 1991)). Thus, "(in our indeterminate sentencing scheme, the board of pardons acts as a sentencing entity, having exclusive authority to 'determine[ ] the actual number of years a defendant is to serve.' " Preece v. House, 886 P.2d 508, 512 (Utah 1994) (second alteration in original) (citations omitted); see also Rawlings v. Holden, 869 P.2d 958, 961 (Utah Ct.App.1994) (noting that " 'our sentencing system vests almost complete discretion in the Board of Pardons to determine the period of time that will actually be served' ") (quoting State v. Schreuder, 712 P.2d 264, 277 (Utah 1985)).

110 At issue in the present case is the extent to which the Board's discretionary determinations on revocation decisions can be judicially reviewed. The State argues that this question is controlled by section 77-27-5(8), which states that "[dlecisions of the board in cases involving paroles, pardons, commutations or terminations of sentence . are final and are not subject to judicial review." (Emphasis added.) Accordingly, the State argues that we lack jurisdiction to review the merits of Linden's claim. We disagree.

111 In spite of section 77-27-5(@8)'s non-reviewability dictate, Utah courts have clearly held that judicial review of the Board's decisions is appropriate in certain cireum-stances in order to ensure that the procedural rights afforded by the Utah Constitution's Due Process Clause are protected. In Lab-rum, the Utah Supreme Court thus held that review was appropriate insofar as "due process pursuant to article I, section 7 of the Utah Constitution requires that the inmate know what information the Board will be considering at the hearing and that the inmate know soon enough in advance to have a reasonable opportunity to prepare responses and rebuttal of inaccuracies." 870 P.2d at 909 (footnote omitted). It is likewise clear, however, that the judicial review authorized by the Utah Constitution is limited. In Lon-caster v. Utah Board of Pardons, the court explained the scope of the procedural protections, therein holding that the review that is authorized by the Utah Constitution's Due Process Clause is limited to the "process by which the board undertakes its sentencing function." 869 P.2d 945, 947 (Utah 1994) (emphasis in original); see also Padilla v. Utah Bd. of Pardons, 947 P.2d 664, 669 (Utah 1997) (noting that "[alnalysis of this claim ... would require this court to engage in a substantive review of the Board's decision, which we have consistently refused to do"); Preece, 886 P.2d at 512 (noting that courts " 'do not sit as a panel of review on the result! ... [Slo 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 cireumstances, cannot be arbitrary and capricious" (quoting Lancaster, 869 P.2d at 947)). Here, Linden asks us to conduct a substantive review of the Board's decision to revoke his parole. We find no clear Utah authority, however, that would indicate that Linden has a right to a substantive judicial review of the Board's decision under the terms of the Utah Constitution.

112 Were this a petition for a review of an original parole grant decision, it is likewise clear that the United States Constitution would afford no avenue for judicial relief. Under the terms of our federal system, the states have the baseline authority to establish their own penal systems. The decision to establish a system of early release, while common among the states, is not required by any provision of the United States Constitution. Accordingly, in Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, the United States Supreme Court thus held that "(there is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." 442 U.S. 1, 7, 99 S.Ct. 2100, 2104, 60 L.Ed.2d 668 (1979). As such, prisoners who are petitioning for an early release are simply hoping for a result that they have no constitutional right to demand or expect. Thus, "(tlhe natural desire of an individual to be released is indistinguishable from the initial resistance to being confined. But the conviction, with all its procedural safeguards, has extinguished that liberty right: '[Given] a valid conviction, the criminal defendant has been constitutionally deprived of his liberty." " Id. (quoting Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976)) (second alteration in original).

113 While the United States Supreme Court has thus acknowledged that a potential parolee does not have a liberty interest protectable under the United States Constitution's Due Process Clause, the Court has nevertheless stressed that former prisoners who have since been paroled do enjoy a conditional Hberty interest that warrants constitutional protection. This was precisely the holding of the United States Supreme Court in Morrissey v. Brewer, wherein the Court recognized that, while a parolee does not enjoy the "absolute liberty to which every citizen is entitled," the fact that the state has already granted the prisoner a release from prison and allowed the rehabilitated prisoner to roam free in society does afford the prisoner a "conditional liberty" interest that is "properly dependent on observance of special parole restrictions." 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972) (emphasis added). Thus, "parole release and parole revocation are quite different. There is a crucial distinction between being deprived of a liberty one has, as in parole, and being denied a conditional liberty that one desires." Greenholtz, 442 U.S. at 9, 99 S.Ct. at 2105. While a prisoner facing an original parole grant hearing is not necessarily entitled to judicial review under the terms of the United States Constitution, a parolee who is facing a parole revocation hearing is entitled to judicial review in order " 'to insure that the state-created right is not arbitrarily abrogated. " Vitek v. Jones, 445 U.S. 480, 489, 100 S.Ct. 1254, 1261, 63 LEd.2d 552 (1980) (citation omitted).

14 We accordingly conclude that, under the terms of the United States Constitution's Due Process Clause, judicial review of the Board's revocations decisions is authorized and that jurisdiction is therefore appropriate in the present case.

IL Linden's Revocation

115 In Black v. Romano, the United States Supreme Court set forth the terms of the constitutionally mandated revocation analysis as follows:

In identifying the procedural requirements of due process, we have observed that the decision to revoke probation typically involves two distinct components: (1) a retrospective factual question whether the probationer has violated a condition of probation; and (2) a discretionary determination by the sentencing authority whether violation of a condition warrants revocation of probation.

471 U.S. 606, 611, 105 S.Ct. 2254, 2257, 85 L.Ed.2d 636 (1985).

116 Here, Linden does not argue that the Board's decision to revoke his parole was improper under the second prong of the rev-ccation analysis. Linden instead argues that, under the first prong, the decision of the Board was constitutionally flawed on the grounds that the Board lacked evidence to conclude that Linden had actually violated a condition of his parole agreement. Cf. Gagnon v. Scarpelli, 411 U.S. 778, 784, 98 S.Ct. 1756, 1760, 36 L.Ed.2d 656 (1973) (stating that the two factors are "analytically distinct").

117 Under the first prong of the Supreme Court's bifurcated revocation analysis, it is clear that a decision to revoke a conditional grant of parole must be supported by evidence indicating that the parolee has actually violated one of the stated conditions of his or her parole. "Implicit in the system's concern with parole violations is the notion that the parolee is entitled to retain his liberty as long as he substantially abides by the conditions of his parole." Morrissey v. Brewer, 408 U.S. 471, 479, 92 S.Ct. 2593, 2599, 83 L.Ed.2d 484 (1972). In allowing a prisoner to be released early, the state thus allows the parolee to rely on "an implicit promise that parole will be revoked only if he fails to live up to the parole conditions." Id. at 482, 92 S.Ct. at 2601 (emphasis added).

118 In Douglas v. Buder, the Supreme Court reversed a revocation decision based entirely on the first prong of the revocation analysis. See 412 U.S. 430, 98 S.Ct. 2199, 37 L.Ed.2d 52 (1978). In Douglas, one of the conditions of the petitioner's probation agreement was that "[all arrests for any reason" would be reported to the petitioner's probation and parole officer "without delay." Id. at 480, 98 S.Ct. at 2200 (alteration in original). Subsequent to his release, the petitioner was involved in a chain-reaction accident on the highway. See id. Along with four other persons, the petitioner was cited for driving too fast for existing conditions. See id. at 4831, 98 S.Ct. at 2200. The petitioner did not report this citation to his probation officer for eleven days. See id. As a result of this failure, a judge determined that the petitioner had violated the terms of his probation and ordered that the petitioner's probation be revoked. See id.

On appeal, the petitioner argued that his receipt of a traffic citation did not constitute an "arrest" and that his probation therefore should not have been revoked. See id. The United States Supreme Court agreed, holding that the judge's finding that the petitioner had violated a condition of his probation was "so totally devoid of evidentia-ry support as to be invalid under the Due Process Clause of the Fourteenth Amendment." Id. at 482, 98 S.Ct. at 2200. In response to the State's argument that the arrest statute could reasonably have been construed so as to include the traffic citation, the Court stated that "[when ... [an] unfor-seeable state-court construction of a criminal statute is applied retroactively to subject a person to eriminal liability for past conduct, the effect is to deprive him of due process of law in the sense of fair warning that his contemplated conduct constitutes a crime." Id. at 482, 98 S.Ct. at 2201 (alterations and omission in original). Thus, under Douglas, it is clear that revocation decisions are judicially reviewable for the purpose of determining whether there was sufficient evidence to indicate that the parolee actually violated a condition of his parole. Absent such evidence, a revocation decision can and constitutionally must be overturned.

120 Here, Linden argues that there was insufficient evidence for the Board to conclude that he had violated condition three of his parole agreement. Linden argues that, by its express terms, condition three could only be violated by eriminal behavior that occurred after he had actually been paroled. According to Linden, the Board's use of his conviction for being an accessory to the 1986 Idaho murder as evidence that he had violated his 1998 parole was therefore improper. We disagree.

121 Though Linden was implicated in an Idaho murder that occurred well before his parole in January 1998, the precise statutory terms under which he pleaded guilty in Idaho indicate that his criminal behavior extended past January of 1998. Linden pleaded guilty of violating Idaho Code section 18-205 (1994), which makes it a crime to "willfully withhold or conceal" knowledge of a felony from "a peace officer, judge, magistrate, grand jury or trial jury." Under its clear terms, Linden not only violated the Idaho accessory statute through his conduct in 1986, but also by withholding his knowledge of that crime from Idaho authorities in the days, weeks, and years subsequent to the murder. Thus, when Linden was paroled in 1998, he was still under an affirmative duty to comply with the felony reporting requirements of Idaho law. His criminal failure to comply with those requirements extended throughout 1998 and resulted in his December 22, 1998 arrest by Idaho authorities.

¶22 Thus, the Board's determination that Linden had violated condition three was not based on criminal behavior that predated his parole, but was instead appropriately based on criminal behavior that occurred after parole was granted. Given this violation of his parole agreement, we conclude that the Board acted within its discretion in determining that Linden should be recommitted to prison.

CONCLUSION

123 We hold that revocation decisions of the Board of Pardons and Parole are substantively reviewable for the purpose of determining whether the decision to revoke parole was made in violation of the parolee's Due Process rights. Among the protections afforded by the Due Process Clause is the requirement that the State produce sufficient evidence to indicate that the parolee has actually violated a condition of his or her parole before revoking that parole. Having reviewed the facts of this case, we conclude that Linden did violate the conditions of his parole by continuing to withhold knowledge of a murder from Idaho authorities after his parole had been granted. We therefore conclude that the Board's decision to revoke his parole was not made in violation of Linden's constitutional rights.

1 24 Accordingly, we affirm.

1 25 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge and PAMELA T. GREENWOOD, Judge.

      . Though the distinction between original parole grant hearings and revocation hearings has not been directly at issue in a Uiah decision, the Uiah Supreme Court has at least recognized in dictum that revocation proceedings are subject to a higher level of constitutional scrutiny than is involved in reviews of original parole grant hearings.
      After a prisoner's liberty interest has been diminished to an expectation of release on a certain date, that interest revives either upon completion of the term fixed or upon a grant of parole before the fixed date. Once paroled, offenders have a liberty interest that is limited by the restrictions that govern parole; it is nevertheless a liberty interest which is entitled to due process protection. Neel v. Holden, 886 P.2d 1097, 1101 (Utah 1994). Given the clear mandate of the United States Constitution's Due Process Clause, however, we need not decide today whether the Utah Constitution's Due Process Clause also affords a similar degree of protection to parolees who are faced with possible revocation.

      . Though Black discussed the revocation analysis in terms of probation decisions, it is well established that "revocation of probation ... is constitutionally indistinguishable from the revocation of parole." Gagnon v. Scarpelli, 411 U.S. 778, 782 n. 3, 93 S.Ct. 1756, 1759 n. 3, 36 L.Ed.2d 656 (1973).

      . In addition to the constitutional protections discussed here, it also seems clear from the Utah Code that the Board lacks authority to revoke parole absent a showing that the parolee actually violated an enumerated condition of his or her parole. See, eg., Utah Code Ann. § 77-27-11(1) (1999) (""The board may revoke the parole of any person who is found to have violated any condition of his parole.") (Emphasis added.); Utah Code Ann. § 77-27-11(6) (1999) ("'Parolees found to have violated the conditions of parole may, at the discretion of the board ... have restitution ordered, or be imprisoned again... .") (Emphasis added.)

      . We wish to stress that, contrary to Linden's assertions, the duty to report that is at issue here did not arise under the rules or provisions of any particular Utah law. Instead, Linden's duty to report arose as a direct result of Idaho's accessory statute. Linden's continuing failure to report his knowledge of the Idaho murder constituted a violation of Idaho law; this violation, in turn, authorized the Board to revoke his parole. Our decision today should not be read so as to create a general rule requiring potential Utah parolees to report all instances of past misconduct, except where such reporting would otherwise be required by applicable law or agreement.


author: THORNE, Jr., Judge: ORME, Judge

text:
    2003 UT App 401
    Charlene S. NEWMAN, Plaintiff and Appellant, v. Brent C. SONNENBERG, Defendant and Appellee.
    No. 20020782-CA.
    Court of Appeals of Utah.
    Nov. 21, 2003.

      Lynn P. Heward, Robert J. Debry & Associates, Salt Lake City, for Appellant.
    Brian P. Miller, Terence L. Rooney, and Bradley R. Blackham, Snow Christensen & Martineau, Salt Lake City, for Appellee.
    Before Judges DAVIS, ORME, and THORNE, Jr.
   OPINION

THORNE, Jr., Judge:

T1 Charlene S. Newman appeals the trial court's grant of summary judgment in favor of Brent C. Sonnenberg, D.D.S. We affirm.

BACKGROUND

12 Newman's regular dentist referred Newman to Sonnenberg, an endodontist, for a root canal. Upon arriving at Sonnenberg's office, Newman signed an "Informed Consent" form. Sonnenberg took several x-rays, conducted a "pulp test" on several teeth, examined an existing temporary crown, and administered a local anesthetic. Sonnenberg determined that Newman was in need of a root canal and directed his office administrator to review the costs and available payment options with Newman. Once Sonnenberg learned that Newman was unable to pay for the procedure outright and that she did not qualify for a payment plan, Sonnenberg refused to perform the root canal.

T3 Upon leaving Sonnenberg's office, Newman contacted another endodontist who also had been recommended to her by her regular dentist. One week later, this second endodontist successfully performed a root canal on Newman's tooth and replaced the temporary crown with a permanent crown.

T4 Newman filed a medical malpractice case against Sonnenberg under the Utah Health Care Malpractice Act, claiming abandonment. Sonnenberg subsequently filed a motion for summary judgment, claiming, among other things, that Newman's "abandonment claim failed because ... Sonnen-berg withdrew prior to commencing treatment." Newman countered that treatment began either when Sonnenberg began the examination or, certainly, when Sonnenberg administered the local anesthetic. After hearing arguments, the trial court granted Sonnuenberg's motion for summary judgment. The court stated that Newman

needs to establish by expert testimony that [Sonnenberg] began treatment. To allow a jury to speculate on the issue of the practice of endodontics does not comport with the Utah Health Care Malpractice Act. The facts of this case do not fit within the exception to the general rule that a plaintiff must establish by expert testimony that the treating professional engaged in malpractice. The standard of care involved here involves the question of whether treatment had begun and whether he properly withheld treatment.... The nature of "treatment" in this field is not one that lay persons understand. When diagnosis ends and when treatment begins is a subject that requires expert testimony to establish there is a dispute.

Newman appeals.

ISSUE AND STANDARD OF REVIEW

T5 Newman challenges the trial court's determination that expert testimony is needed to prove abandonment. "When determining the propriety of a trial court's grant of summary judgment, 'we review the trial court's legal conclusions for correctness, affording those legal conclusions no deference." " Nyman v. Anchor Dev., L.L.C,, 2003 UT 27, 47, 73 P.3d 357 (quoting Ault v. Holden, 2002 UT 33, ¶ 15, 44 P.3d 781).

ANALYSIS

T6 Newman argues that expert testimony is not needed on the issue of abandonment because "the determination as to when the medical practitioner incurs a duty to the patient is not dependent upon expert testimony." (Emphasis omitted.) Newman claims that "[the main issue is not whether some medically defined procedure has begun, but whether the doctor-patient relationship exists" and that "the duty to treat [and not to abandon] arises upon the existence of the relationship of physician and patient alone."

17 "In the majority of medical malpractice cases the plaintiff must introduce expert testimony to establish [the] standard of care." Nixdorf v. Hicken, 612 P.2d 348, 352 (Utah 1980). "Expert testimony is required because the nature of the [medical] profession removes the particularities of its practice from the knowledge and understanding of the average citizen." Id. However, "[elxpert testimony is unnecessary to establish the standard of care owed ... where the propriety of the treatment received is within the common knowledge and experience of the layman." Id.

T8 In Utah, it "is well settled that a physician or surgeon, upon undertaking an operation or other case, is under the duty, in the absence of an agreement limiting the service, of continuing his [or her] attention, after the first ... treatment, so long as the case requires attention." Ricks v. Budge, 91 Utah 307, 64 P.2d 208, 211 (1937) (emphasis added). "A physician has the right to withdraw from a case, but if the case is such as to still require further medical or surgical attention, he must, before withdrawing from the case, give the patient sufficient notice so the patient can procure other medical attention if he desires." Id. at 212. Accordingly, a medical provider " 'is bound to exercise reasonable and ordinary care and skill in determining when he [or she] should discontinue his [or her} treatment and services." " Id. (quoting Mucci v. Houghton, 89 Iowa 608, 57 N.W. 305, 306 (Iowa 1894)).

19 Consequently, the duty to " 'exercise reasonable and ordinary care and skill in determining when he [or shel should discontinue his [or her] treatment and services' " arises only if the medical provider has, in fact, begun " 'treatment and services." " Id. (citation omitted). Once it is established that treatment and services have begun, only then should the fact-finder be permitted to analyze whether the medical provider exercised reasonable and ordinary care in discontinuing treatment and services. See id. at 218.

T10 We agree with Newman's claim that Sonnenberg owed her a duty of reasonable care as soon as the doctor-patient relationship was created. See Farrow v. Health Servs. Corp., 604 P.2d 474, 476 (Utah 1979) ("The duty of care generally owed by a physician to his patient is to exercise that degree of skill and learning ordinarily possessed and exercised, under similar cireumstances, by other practitioners in his field of practice. He must use ordinary (ordinary for a physician) and reasonable care and diligence, and his best judgment, in applying his skill to his patient's case."). However, Newman fails to recognize the distinction between this general duty of reasonable care and the more specific duty not to abandon, which, pursuant to Ricks, does not attach until " "treatment and services' " have begun. Ricks, 64 P.2d at 218 (citation omitted). Here, we are concerned with the more specific question regarding whether expert testimony is needed, not to establish a doctor-patient relationship, but rather to establish the elements of abandonment.

111 Utah courts have not yet determined whether expert testimony is needed to prove abandonment. However, several other jurisdictions have required expert testimony in similar cireumstances. In Cox v. Jones, 470 N.W.2d 23 (Iowa 1991), the plaintiff failed to designate an expert witness in a timely fashion and then argued, to avoid summary judgment, that expert testimony was not necessary to prove abandonment. See id. at 25-26. The court, in denying plaintiff relief, reasoned

[a] physician who leaves a patient in a critical stage of a disease without reason or sufficient notice to enable the patient to secure another physician is subject to liability to that patient. To prove abandonment, a plaintiff patient must show that the abandonment occurred during a critical stage of the patient's [ ... ] treatment. Even if a jury could determine that defendants refused to treat [the plaintiff] because her bill was past due, expert evidence would be required to establish that [the plaintiff] was at a critical stage of her medical care when defendants allegedly withdrew medical treatment. Consequently, without expert testimony ... an abandonment cause of action cannot be proven.

Id. at 26-27 (emphasis added).

€ 12 Similarly, in Walker v. Saint Vincent Charity Hospital, No. 670835, 1995 WL 168492, 1995 Ohio App. LEXIS 1481 (Ohio Ct.App. Cuyahoga County Apr. 6, 1995), a pro se plaintiff sued two doctors for abandonment. See id. at *1, 1995 Ohio App. LEXIS at *2. In defense, the doctors filed a motion for summary judgment, claiming that the plaintiff had not made a prima facie case of negligence because he had offered no expert testimony. See id. at *1, 1995 Ohio App. LEXIS at *2-8. The court concluded that the claim for abandonment "must be supported by expert medical testimony concerning a defendant's failure to meet professional standards of care in the medical community." Id. at *2, 1995 Ohio App. LEXIS at "4; see also Tavakoli-Nouri v. Gunther, 745 A.2d 939, 941 (D.C.2000) (concluding that under those circumstances the standard of care for abandonment had to be established by expert witness); Surgical Consultants, P.C. v. Ball, 447 N.W.2d 676, 682 (Iowa Ct.App.1989) (suggesting that expert evidence is necessary to establish patient was at a "critical stage" when physician withdrew); King v. Fisher, 918 S.W.2d 108, 110 (Tex.App.1996) (noting that "[tlo prove abandonment [in a medical malpractice case], expert testimony is critical").

T13 We agree with the reasoning of these cases. We are not persuaded by Newman's claim that the duty not to abandon arises immediately upon the establishment of a doctor-patient relationship. Instead, this more specific duty not to abandon can be claimed only after treatment or services have been provided. At that time, a doctor must exercise reasonable and ordinary care and skill in determining whether to discontinue treatment and services. See Ricks v. Budge, 91 Utah 807, 64 P.2d 208, 212 (1987). Deciding whether treatment or services have been provided is a medical question requiring expert testimony, unless the case involves a medical procedure "so common or the outcome so affronts our notions of medical propriety that expert testimony is not required." Nixdorf v. Hicken, 612 P.2d 348, 358 (Utah 1980).

§114 Here, Sonnenberg was designated as an expert witness and testified by affidavit and deposition that he was merely diagnosing Newman and that he never began "treatment." Sonnenberg explained that Newman had several cracked teeth and the purpose of anesthetizing Newman's tooth was to determine which tooth was causing the pain and whether or not a root canal was needed. Newman, on the other hand, presented no expert testimony to rebut Sonnen-berg's assertions.

115 Obviously, most lay people do not possess the necessary expertise to accurately determine whether Sonnenberg's actions constituted mere diagnosis or signified the beginning of treatment. This is precisely the kind of situation that requires expert testimony because the "particularities of [Sonnen-berg's] practice [are removed] from the knowledge and understanding of the average citizen." Id. at 852.

116 Accordingly, to survive summary judgment, Newman was required to present expert testimony on the issue of when treatment began. The trial court properly granted Sonnenberg's motion for summary judgment, for without proof that Sonnenberg had begun treatment, the duty to exercise reasonable and ordinary care and skill in determining when to discontinue treatment did not arise. See Ricks, 64 P.2d at 210.

CONCLUSION

17 Expert testimony is needed to prove each element of abandonment, including when treatment begins, except in cireum-stances when the matter at issue falls within the common knowledge of jurors. Newman failed to introduce expert testimony in support of her abandonment claim, thus, the trial court properly granted Sonnenberg's motion for summary judgment.

1118 I CONCUR: JAMES Z. DAVIS, Judge.

ORME, Judge

(dissenting):

119 "Due to the technical and complex nature of a medical doctor's services, expert medical testimony must be presented at trial in order to establish the standard of care and proximate cause-except in unusual cireum-stances." Chadwick v. Nielsen, 763 P.2d 817, 821 (Utah Ct.App.1988). "For example, 'expert testimony is unnecessary to establish the standard of care owed the plaintiff where the propriety of the treatment received is within the common knowledge and experience of the layman.' " Id. (quoting Nizdorf v. Hicken, 612 P.2d 848, 352 (Utah 1980)).

1 20 There was nothing particularly "technical and complex" about Plaintiffs aborted visit to Dr. Sonnenberg. According to the evidence she presented-and "when 'reviewing a grant of summary judgment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party, " Ault v. Holden, 2002 UT 33,1 15, 44 P.3d 781 (quoting DCM Inv. Corp. v. Pinecrest Inv. Co., 2001 UT 91," 6, 34 P.3d 785) (emphasis added)-Plaintiff reported to Dr. Somnenberg's office to have a root canal done, Dr. Sonnenberg agreed to do the procedure, he administered the anesthetic necessary for undertaking the procedure, and then, while she sat in the dental chair waiting for the anesthetic to become fully effective, he changed his mind about doing the procedure because he feared he would not be paid for his work. It is at least unprofessional to evaluate a patient's creditworthiness while she sits in a dental chair, anesthetized and waiting for a procedure to begin that she has been advised will be done for her. Whether sending her on her way because of cold feet about her ability to pay also constitutes compensable abandonment is something a properly instructed jury may well be able to decide for itself, without the guidance offered by experts.

1 21 I admittedly puzzle over the economic viability of Plaintiff's claim-after all, a sue-cessful root canal was performed by another dentist eight days after the aborted visit to Dr. Sonnenberg, and the damages proximately caused by one unnecessary shot of novo-caine would appear to be rather minimal. Nonetheless, on the record before us, I believe that her claim should withstand the motion for summary judgment and that she was entitled to proceed to trial.

      . In support, Newman cites the following cases: Johnson v. University of Chi. Hosp., 774 F.Supp. 510, 512 (N.D.Ill.1991), affirmed in part and reversed in part by, 982 F.2d 230 (Ith Cir.1992) (addressing duty of a hospital to treat patients); Lewis v. Capalbo, 280 A.D.2d 257, 720 N.Y.S.2d 455, 457 (2001) (noting that a doctor-patient relationship is created when a doctor "undertakes to examine and treat a patient"); Ortiz v. Shah, 905 S.W.2d 609, 611 (Tex.App.1995) (noting that a doctor can only be liable for medical negligence after a doctor-patient relationship exists).

      . In contrast, Newman argues that "the term 'treatment' was used by the Utah Supreme Court [in Ricks v. Budge, 91 Utah 307, 64 P.2d 208 (1937),] to indicate when the physician-patient relationship was established, and [,] hencel,] the duty not to abandon arose." We disagree. A doctor-patient relationship can exist long before a medical provider begins "treatment" that triggers the duty not to abandon. For example, from the moment a patient enters a doctor's office, fills out forms, and speaks to a doctor, that doctor owes the patient a duty of reasonable care (e.g., a duty of confidentiality and duty not to exploit the patient) even though no "treatment" has begun.
      Even if Ricks could be interpreted as Newman argues, we conclude that its reasoning is ouidat-ed and not useful in today's world of specialized medicine. Medical providers must be given the freedom to determine when they are able to render proper medical assistance. Otherwise it would be impossible for a doctor to refer a patient to another medical provider or decline to take a case in an area about which he or she has no expertise without exposing himsel{ or herself to a claim of abandonment.

      . We do not decide in this case whether, to prove abandonment, the plaintiff must demonstrate that he or she was at a "critical" stage of treatment, because the issue was not presented to us nor was it briefed by the parties. However, Ricks seers to require that the patient be at a critical stage before abandonment is an issue. See Ricks, 64 P.2d at 210 (" 'A physician who leaves a patient, at a critical state of the disease, without reason, or sufficient notice to enable the party to procure another medical attendant, is guilty of a culpable dereliction of duty.' " (quoting Barbour v. Martin, 62 Me. 536 (1873))).

      . We disagree with the dissent's claim that ''there was nothing particularly 'technical and complex' about plaintiff's aborted visit to Dr. Sonnenberg." The dissent attempts to over-simplify the facts and ignores that Ms. Newman had several cracked teeth that could have been radiating pain. The dissent also ignores that Dr. Sonnenberg claimed he needed to numb the tooth in question to determine if that tooth was causing pain or whether a nearby cracked tooth needed attention. Dr. Sonnenberg ultimately determined Ms. Newman needed a root canal, but he had not started the root canal when he refused to go forward. This uncontested evidence belies the dissent's claim that this case falls within the common knowledge of jurors, for most jurors do not possess the knowledge to accurately determine when treatment began in this case.