Dial v. Vaughn

• Citation: 733 A.2d 1
• Parties: Ertle DIAL, Petitioner, v. Mr. Donald T. VAUGHN, Superintendent of the State Correctional Institution at Graterford; Mike Fisher, Attorney General of the Commonwealth of Pennsylvania and Pennsylvania State Police, Respondents.
• Decision Date: 20 May 1999
• Court: Commonwealth Court of Pennsylvania

733 A.2d 1

Ertle DIAL, Petitioner, v. Mr. Donald T. VAUGHN, Superintendent of the State Correctional Institution at Graterford; Mike Fisher, Attorney General of the Commonwealth of Pennsylvania and Pennsylvania State Police, Respondents.

Commonwealth Court of Pennsylvania.

Submitted on Briefs September 16, 1998.

Decided May 20, 1999.

No appearance entered for petitioner.

Joel M. Ressler, Senior Deputy AG, Harrisburg, for respondent.

Before COLINS, President Judge, and DOYLE, J., McGINLEY, J., SMITH, J., PELLEGRINI, J., FRIEDMAN, J. and LEADBETTER, J.

LEADBETTER, Judge.

By a petition under our original jurisdiction,¹ Ertle Dial, an inmate at Graterford SCI, challenges the constitutionality of the requirement that he submit a blood sample for DNA testing pursuant to the DNA Detection of Sexual and Violent Offenders Act (Act).² This is an issue of first impression. Dial contends that the Act, by retroactively adding a condition of parole, violates the doctrine of separation of power, invalidates his guilty plea,³ and violates the ex post facto prohibitions of the constitutions of Pennsylvania and the United States and the fourth amendment of the United States Constitution. Dial avers that during his confinement at Graterford, following his entry of a guilty plea to an unspecified sex offense, a sample of his blood was taken for DNA testing pursuant to Section 306(b) of the Act, 35 P.S. § 7651.306(b). He seeks the removal of his DNA information from the data bank and an injunction against further DNA testing as a condition of his release on parole.

Respondents, Donald Vaughn, Superintendent at Graterford, the Commonwealth Attorney General and the State Police, (collectively referred to as Commonwealth) filed preliminary objections in the nature of demurrers to the claims that the Act violates the separation of powers doctrine and constitutes an ex post facto law. In deciding preliminary objections, we accept as true the well-pleaded facts that are material and relevant to petitioner's claim. Dial v. Board of Probation and Parole, 706 A.2d 901, 902 (Pa.Cmwlth. 1998). We need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations or expressions of opinion. Id.

In general, Pennsylvania's DNA Act establishes an administrative process for the implementation of a DNA identification system as a tool in criminal investigations and for deterrence of recidivist crime. 35 P.S. §§ 7651.102 and 7651.302. The identification system contains DNA data from persons convicted of felony sex offenses, murder, harassment and stalking, and indecent assault. 35 P.S. § 7651.306. Section 306 of the Act establishes requirements for the submission of blood samples from persons convicted of the specified crimes. Section 306(b) provides as follows:

(b) Conviction before effective date.

— A person who has been convicted or adjudicated delinquent for a felony sex offense or other specified offense before the effective date of this section and who is still serving a term of confinement in connection therewith on the effective date of this section shall not be released in any manner prior to the expiration of his maximum term of confinement unless and until a DNA sample has been withdrawn.

The Commonwealth first demurs to Dial's claim that the Act deprives him of eligibility for parole and in consequence affects the duration of his incarceration in violation of the doctrine of separation of powers. There is no question that final judgments of the judiciary are inviolable and a final judgment of sentence may not be disturbed by a subsequent legislative change. Commonwealth v. Sutley, 474 Pa. 256, 263, 378 A.2d 780, 784-785 (1977). This rule does not, however, preclude legislative enactment that changes the manner of executing the sentence. In Sutley, the court explained:

[T]he legal sentence is the maximum sentence. The reason being that while the minimum sentence determines parole eligibility, the maximum sets forth the period of time that the state intends to exercise its control over the offender for his errant behavior. The judicial discretion is the determination of the period of control over the person of the offender in view of the nature of the crime, the background of the defendant and the other pertinent considerations for such a decision. It is this exercise of discretion that the rule of the "inviolability of final judgment" seeks to protect. The institution in which the sentence is to be served, the objects sought to be accomplished during this period of control and all the other penological considerations are not primarily judicial functions.

Id. at 268, 378 A.2d at 786 (citations omitted).

The requirement that Dial submit to pre-release withdrawal of a blood sample for DNA testing does not alter his maximum sentence. Nor does the Act alter Dial's parole eligibility date. Once eligibility has been achieved by incarceration for the prescribed minimum time, actual release on parole may depend on full compliance with a variety of prison rules and administrative requirements. The Act defines an administrative requirement that must be satisfied prior to release. This requirement is similar to the requirement for acquisition and storage of other convict identification records in the form of photos, fingerprints and physical description compiled at the time of arrest. See 18 Pa.C.S. § 9112 and the Act of April 27, 1927, P.L. 414, as amended, 61 P.S. §§ 2171-2177. The power to parole is an administrative function. Sutley, 474 Pa. at 266, 378 A.2d at 785 quoting Commonwealth ex rel. Banks v. Cain, 345 Pa. 581, 588-89, 28 A.2d 897, 901 (1942). In the instant case, the Act establishes an administrative process for identification and Dial challenges the particular subsection that promotes prisoner cooperation with the identification process. No provision of the Act alters the judgment of sentence rendered by the sentencing court. For this reason, Dial is unable to maintain a claim that the Act violates the doctrine of separation of powers. Accordingly, the Commonwealth's preliminary objection in the nature of a demurrer to this claim is sustained.

Next, the Commonwealth demurs to Dial's claim that subsection 306(b) of the Act, 35 P.S. § 7651.306(b), effects an ex post facto enhancement of his sentence in violation of Article 1, Section 10 of the United States Constitution and Article 1, Section 17 of the Pennsylvania Constitution. A law transgresses the ex post facto prohibition only where, first, the law is retrospective and second, it alters the definition of criminal conduct or increases the penalty by which crime is punishable. California Dep't of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). See also Del Valle v. Workmen's Compensation Appeal Bd. (Pennsylvania Dep't of Educ.), 687 A.2d 1211, 1212 (Pa.Cmwlth.1997).⁴ There is no ex post facto violation if the legislation is not penal in nature, Van Doren v. Mazurkiewicz, 695 A.2d 967 (Pa.Cmwlth.1997); Commonwealth v. Kline, 695 A.2d 872 (Pa.Super.1997), alloc. denied, 552 Pa. 694, 716 A.2d 1248 (1998), but is merely procedural, U.S. v. Askari, 608 F.Supp. 1045, 1048 (E.D.Pa.1985).

The Commonwealth argues that the blood testing requirement is not penal and therefore cannot offend the ex post facto clause. We agree. The testing program is non-penal because there is no evidence, in its purpose or its design, of any intent to punish or requirements so harsh as to objectively constitute punishment. E.B. v. Verniero, 119 F.3d 1077, 1088-89 (3d Cir. 1996),cert. denied, ___ U.S. ___, 118 S.Ct. 1039, 140 L.Ed.2d 105 (1998). The collection of blood for identification and establishment of a DNA data bank is, like fingerprinting and photographing, a non-penal, administrative requirement. See Gilbert v. Peters, 55 F.3d 237, 239 (7th Cir.1995)

. See also Rise v. Oregon, 59 F.3d 1556, 1562 (9th Cir.1995), cert. denied, 517 U.S. 1160, 116 S.Ct. 1554, 134 L.Ed.2d 656 (1996); Kruger v. Erickson, 875 F.Supp. 583, 589 (D.Minn.1995),

affirmed,

77 F.3d 1071 (8th Cir.1996). Moreover, the blood testing is reasonable because it constitutes a limited search involving minor intrusion, Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 625, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989), on persons with diminished expectations of privacy, Bell v. Wolfish, 441 U.S. 520, 559-60, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), for the purpose of improved law enforcement, Jones v. Murray, 962 F.2d at 307.

Nor do we believe that denial of parole for refusal to comply with the Act's sample collection requirements is ex post facto. We are guided in this decision by the opinion of the United States Court of Appeals for the Fourth Circuit in Jones v. Murray, 962 F.2d 302 (4th Cir.), cert. denied, 506 U.S. 977, 113 S.Ct. 472, 121 L.Ed.2d 378 (1992).⁵ In 1990, the Commonwealth of Virginia enacted a DNA detection act similar to the Pennsylvania statute.⁶ Pursuant to the statute, the Virginia Department of Corrections established procedures by which blood samples would be drawn from inmates falling within the scope of the statute. The department required every felon in custody on or after the relevant date to provide a blood sample prior to the individuals' discretionary parole eligibility date or thirty days prior to the mandatory parole date if the discretionary date had passed. Six inmates challenged the statute and regulations on the grounds that the program violated the fourth amendment, the ex post facto clause and the fourteenth amendment due process clause.

With respect to the ex post facto claim, the court in Jones held that the prohibition against the release of non-compliant inmates who had reached their mandatory parole date⁷ was an ex post facto enhancement of the terms of original sentence. However, section 306 of the Pennsylvania Act does not limit release beyond the mandatory release date established under the terms of the...