                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


            MORTON ROBERT BERGER, Petitioner/Appellant,

                                        v.

 ARIZONA BOARD OF EXECUTIVE CLEMENCY, Respondent/Appellee.

                             No. 1 CA-CV 18-0339
                               FILED 4-11-2019


           Appeal from the Superior Court in Maricopa County
                        No. LC2017-000502-001
             The Honorable Peter C. Reinstein, Judge Retired

                                  AFFIRMED


                                   COUNSEL

Herb Ely, Attorney at Law, Phoenix
By Herb L. Ely

Law Office of Chance Peterson, PLC, Phoenix
By Marshall Chance Peterson
Co-Counsel for Petitioner/Appellant

Arizona Attorney General’s Office, Phoenix
By Kelly Gillilan-Gibson
Counsel for Respondent/Appellee
                            BERGER v. ABEC
                           Decision of the Court



                      MEMORANDUM DECISION

Acting Presiding Judge Kent E. Cattani delivered the decision of the Court,
in which Judge James P. Beene and Chief Judge Samuel A. Thumma joined.


C A T T A N I, Judge:

¶1            Morton Robert Berger appeals from a superior court order
denying relief on his special action petition alleging that the Arizona Board
of Executive Clemency (the “Board”) violated his due process rights in
denying his application for commutation of his sentence. For reasons that
follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            In 2003, Berger was convicted of 20 counts of sexual
exploitation of a minor. He was sentenced to 20 consecutive sentences of
10 years each, resulting in a 200-year sentence.

¶3           Berger applied for commutation of his sentence in 2015. The
Board held a Phase I hearing (a documentary review of Berger’s case) in
May 2016 and unanimously voted to advance his application to a Phase II
hearing. At the Phase II hearing, Berger and others testified in support of
commuting his sentence, but the Board voted unanimously to deny his
application.

¶4            Berger filed a special action petition with the Arizona
Supreme Court, which declined jurisdiction. He then filed a special action
petition in superior court, contending that the Board violated his due
process rights by improperly basing its decision on his rejection of a plea
offer in the underlying criminal case. The superior court concluded that
Berger’s petition sought relief “beyond the power of the judicial branch,”
and that it could not substitute its judgment for the Board or compel the
Board to act in any particular manner. The court denied Berger’s petition,
finding that he had been given the required notice of the commutation
hearing and an opportunity to be heard.

¶5            Berger timely appealed the superior court’s ruling. We have
jurisdiction under Arizona Revised Statutes (“A.R.S.”) § 12-2101(A)(1).




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                             Decision of the Court

                                DISCUSSION

¶6        As relevant here, A.R.S. § 31-402(C)(2) provides that the Board
may recommend commutation of a sentence to the Governor as follows:

       After a hearing for which the victim, county attorney and
       presiding judge are given notice and an opportunity to be
       heard, [the Board] may make recommendations to the
       governor for commutation of sentence after finding by clear
       and convincing evidence that the sentence imposed is clearly
       excessive given the nature of the offense and the record of the
       offender and that there is a substantial probability that when
       released the offender will conform the offender’s conduct to
       the requirements of the law.

“[C]ommutation decisions have not traditionally been the business of
courts; as such, they are rarely, if ever, appropriate subjects for judicial
review.” Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 464 (1981); see also
Sheppard v. Ariz. Bd. of Pardons & Paroles, 111 Ariz. 587, 587 (1975) (“[O]fficial
actions of the [board of pardons and paroles] are not, generally, subject to
judicial review.”).1 Arizona courts have “long recognized the division of
power and the transfer of jurisdiction over a felon from the judicial to the
executive branch of government upon conviction.” State v. Wagstaff, 164
Ariz. 485, 488 (1990); State v. Stocks, 227 Ariz. 390, 397, ¶ 21 (App. 2011). As
such, while the courts may compel the Board to act, they cannot compel it
to act in any particular manner. Cooper v. Ariz. Bd. of Pardons & Paroles, 149
Ariz. 182, 184 (1986).

¶7            Citing Cooper, Berger contends that we should review the
Board’s decision because it improperly considered his refusal to accept a
plea offer. But Cooper does not provide support for Berger’s position and
instead confirms that the Board has “sole discretion” in deciding whether
to grant or deny parole. See id. at 185–86. The relevant statute at issue in
Cooper (the then-current version of § 31-412(A)) provided that the Board:

       shall authorize the release of the applicant upon parole if the
       applicant has reached his earliest parole eligibility date . . . ,
       unless it appears to the board, in their sole discretion, that there


1      The Legislature replaced the former Board of Pardons and Paroles
with the Board of Executive Clemency in 1994. 1993 Ariz. Sess. Laws, ch.
255, §§ 64, 98(A) (41st Leg., 1st Reg. Sess.) (S.B. 1049).



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                            Decision of the Court

       is a substantial probability that the applicant will not remain
       at liberty without violating the law.

Cooper, 149 Ariz. at 185 (emphasis modified); see also A.R.S. § 31-412(A)
(granting similar authority to the Board). The court concluded that the
Legislature foreclosed judicial review of the Board’s reasoning by granting
it “sole discretion” in choosing to grant or deny parole. Cooper, 149 Ariz. at
186.

¶8              Similar to the former § 31-412, A.R.S. § 31-402(A) now grants
the Board the “exclusive power to pass on and recommend . . .
commutations.” See also Johnson v. Mofford, 193 Ariz. 540, 541, ¶ 2 (App.
1998). Accordingly, our review is limited to determining whether an
inmate seeking commutation received due process in the proceedings. State
ex rel. Ariz. State Bd. of Pardons & Paroles v. Superior Court, 12 Ariz. App. 77,
80 (App. 1970). Due process requires that a party receive notice and an
opportunity to be heard in a meaningful manner at a meaningful time.
Burch & Cracchiolo, P.A. v. Myers, 237 Ariz. 369, 379, ¶ 37 (App. 2015). Here,
Berger does not contend that the Board failed to give him notice or a
meaningful opportunity to be heard. Berger therefore has not shown he
was denied his due process rights in the Phase II hearing, or that he is
otherwise entitled to relief.

¶9            Berger also relies on Stinson v. Arizona Board of Pardons &
Paroles, 151 Ariz. 60 (1986). There, an inmate contended that the Board
considered several factors irrelevant to recidivism in denying parole. Id. at
60–61. The Stinson court did not decide whether those factors were relevant
to recidivism; rather it affirmed the Board’s decision because the inmate
“did not claim that any of the procedures provided for by the parole
statutes had been violated . . . , but instead disagreed with the reasons given
for the denial.” Id. at 61.

¶10           Like the inmate in Stinson, Berger contends that his decision
to decline a plea offer is irrelevant to the factors set forth in § 31-402(C)(2).
To be sure, it would be improper—not only statutorily but
constitutionally—for the Board to deny Berger’s application as punishment
for exercising his constitutional right to trial, just as it would be improper
for the Board to deny an application based on the race of the applicant. But
here, the record does not support Berger’s contention that the Board denied
his application as punishment for declining the plea offer. Instead, the
Board’s discussion of Berger’s rejected plea offer was in the context of
Berger offering witnesses who claimed that his sentence was excessive. For
example, Board Member Michael Johnson rejected a comparison of


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                           Decision of the Court

sentences offered by one of Berger’s witnesses because the cited prison
sentences stemmed from plea agreements. Johnson stated that the Board
should not “compare plea agreements to trials,” and noted that although he
was “concerned about the plea agreement,” he was “not sure . . . that [the
sentence] was excessive” based on the evidence presented at the hearing.
Board Member Louis Quinonez also commented on the plea offer but
likewise did so in the context of determining whether Berger’s sentence was
excessive. He concluded the sentence was not excessive because it was
“clearly on the books at the time.” And Board Chairman C.T. Wright
concluded that Berger simply had not met his evidentiary burden under §
31-402(C)(2).

¶11           In short, the Board did not penalize Berger for rejecting a plea
offer, and instead simply referenced the plea offer in the context of a
discussion regarding why others who committed similar offenses had
received lesser prison sentences. Because the Board did not consider
improper factors and did not deny Berger his due process rights, the
superior court did not err by affirming the Board’s decision on Berger’s
application for commutation.

                               CONCLUSION

¶12           We affirm the superior court’s judgment.




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




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