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

20170224-CA 2 2017 UT App 121

¶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”).
Brechlin v. Board of Pardons and Parole

20170224-CA 3 2017 UT App 121

¶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, 
Brechlin v. Board of Pardons and Parole

20170224-CA 4 2017 UT App 121

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 
Brechlin v. Board of Pardons and Parole

20170224-CA 5 2017 UT App 121

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 
Brechlin v. Board of Pardons and Parole

20170224-CA 6 2017 UT App 121

(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.