Hamilton v. Az Bd of Clemency

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

KELLY K. HAMILTON, Plaintiff/Appellant,

v.

ARIZONA BOARD OF EXECUTIVE CLEMENCY, Defendant/Appellee.

No. 1 CA-CV 23-0397
FILED 3-26-2024

Appeal from the Superior Court in Maricopa County
No. LC2023-000043-001
The Honorable Margaret LaBianca, Judge

AFFIRMED

COUNSEL

Kelly K. Hamilton, Eloy
Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix
By Kelly Gillilan-Gibson
Counsel for Defendant/Appellee

MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Maria Elena Cruz joined.
 HAMILTON v. AZ BD OF CLEMENCY
Decision of the Court

B A I L E Y, Judge:

¶1 Kelly K. Hamilton appeals a superior court order denying
relief on his special action petition. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Hamilton is an inmate serving a life sentence for first-degree
murder committed in 1982. He has repeatedly petitioned the Arizona
Board of Executive Clemency (“the Board”) for parole since becoming
eligible. Beginning in January 2007, the Board has held semiannual
hearings to determine whether to grant Hamilton parole; it has denied him
each time thus far.

¶3 In February 2023, Hamilton filed a special action petition in
the superior court alleging the Board had been applying the wrong version
of Arizona Revised Statutes (“A.R.S.”) section 31-412 to his parole
applications and thus violated his due process rights. Specifically,
Hamilton claimed the Board retroactively applied a later version of § 31-
412(A) when it should have applied the version in effect at the time of his
1982 offense.1 Hamilton also argued that under the 1982 version, the
Board’s review is limited to the applicant’s institutional record, and under
this standard, an applicant with a good institutional record should be
granted parole.

¶4 The Board agreed the 1982 version applied to Hamilton’s case
and asserted it had been using the 1982 version in all of Hamilton’s
hearings. The Board attached copies of its written denials to prove its
correct statutory application. Each written denial included the following
statement: “The Board believes that you would not remain at liberty
without violating the law[.]” The Board contended these written denials

1 At the time of Hamilton’s 1982 offense, § 31-412 provided that the Board

shall authorize the release of the eligible parole applicant “unless it appears
to the board, in their sole discretion, that there is a substantial probability
that the applicant will not remain at liberty without violating the law.”
A.R.S. § 31-412(A) (Supp. 1982). The current version provides that the
Board shall authorize the release of the eligible parole applicant if “it
appears to the board, in its sole discretion, that there is a substantial
probability that the applicant will remain at liberty without violating the
law and that the release is in the best interests of the state.” A.R.S. § 31-
412(A).

2
 HAMILTON v. AZ BD OF CLEMENCY
Decision of the Court

show that the 1982 version of the statute was applied to Hamilton’s
applications.

¶5 The Board also asserted that under Cooper v. Arizona Board of
Pardons & Paroles, it can consider the totality of Hamilton’s case when
making parole determinations and is not limited to considering only his
institutional record. 149 Ariz. 182, 185 (1986) (recognizing the Board can
consider factors such as the seriousness of the offense and the age of the
victim when making a parole determination).

¶6 The superior court found the Board’s written denial statement
“mirrors the language of A.R.S. § 31-412(A) in effect in 1982.” And although
the Board used the term “believes” instead of “appears . . . there is a substantial
probability” Hamilton would not remain at liberty without violating the
law,2 the court concluded the language difference “does not establish that
the Board is utilizing the wrong version of the statute.” (Emphasis added).
The court also rejected Hamilton’s interpretation of § 31-412(A), including
his argument that he was entitled to parole if he had a good institutional
record.

¶7 Finding “the Board has not retroactively applied the current
version of A.R.S. § 31-412(A) to its review of Mr. Hamilton’s case,” the court
denied relief in his special action petition. The court also denied his motion
to reconsider.

¶8 Hamilton timely appealed, and we have jurisdiction pursuant
to A.R.S. §§ 12-120.21(A)(4) and -2101(A)(1).

DISCUSSION

¶9 The issues Hamilton raises rely on his assertion that the Board
applied the wrong version of § 31-412(A) to his parole applications. We
review the superior court’s denial of special action relief for an abuse of
discretion. Hormel v. Maricopa Cnty., 224 Ariz. 454, 458, ¶ 16 (App. 2010).

¶10 In its denial statements, the Board stated its belief that
Hamilton “would not remain at liberty without violating the law,” which
tracks the language in the 1982 version of the statute: “applicant will not
remain at liberty without violating the law.” A.R.S. § 13-412(A) (Supp.
1982). In each written denial, the Board enumerated its reasons for
believing that Hamilton would not remain at liberty without violating the

2 See A.R.S. § 31-412(A) (Supp. 1982).

3
 HAMILTON v. AZ BD OF CLEMENCY
Decision of the Court

law, including “serious & violent offense,” “trauma to the victim,” “loss of
human life,” “prior criminal history,” “prior escape,” “needs closer
supervision,” “violated prev[ious] probation/parole,” “age of the victim,”
and “extreme brutality of instant offense.”

¶11 Hamilton presents no evidence that the Board failed to apply
the 1982 version to his parole applications. While he may disagree with the
Board’s determinations, the Board retains sole discretion to grant or deny
parole. Stewart v. Ariz. Bd. of Pardons & Paroles, 156 Ariz. 538, 540 (App.
1988). Our review is limited to ensuring the requirements of due process
have been met and that the Board acted within the scope of its powers. Id.;
see also Stinson v. Ariz. Bd. of Pardons & Paroles, 151 Ariz. 60, 61 (1986).

¶12 Hamilton also argues the Board’s consideration of “home
arrest” shows the Board used the current version of § 31-412(A) to deny him
parole. But Hamilton raised this issue for the first time in his motion to
reconsider and therefore waived it on appeal. See Ramsey v. Yavapai Fam.
Advoc. Ctr., 225 Ariz. 132, 137, ¶ 18 (App. 2010).

¶13 Because the record shows the Board applied the 1982 version
of § 31-412(A) to Hamilton’s parole applications—the threshold issue in this
appeal—we do not address his remaining arguments.

CONCLUSION

¶14 We affirm the superior court’s order denying relief on
Hamilton’s special action petition.

AMY M. WOOD • Clerk of the Court
FILED: AA

4