Cimaszewski v. Bd. of Probation and Parole

• Citation: 868 A.2d 416,582 Pa. 27
• Parties: Stanley CIMASZEWSKI, Appellant v. BOARD OF PROBATION AND PAROLE, Appellee.
• Decision Date: 24 February 2005
• Court: United States State Supreme Court of Pennsylvania

868 A.2d 416

582 Pa. 27

Stanley CIMASZEWSKI, Appellant v. BOARD OF PROBATION AND PAROLE, Appellee.

Supreme Court of Pennsylvania.

Submitted September 26, 2002.

Submitted October 30, 2002.

Decided February 24, 2005.

Stanley Cimaszewski, appellant, pro se.

Tara Leigh Patterson, Robert Campolongo, for Bd. of Probation and Parole, appellee.

Before: CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.

OPINION

Justice BAER.

Appellant Stanley Cimaszewski, a prisoner incarcerated at the State Correctional Institute in Somerset, Pennsylvania, appeals from the Commonwealth Court's order dismissing his Petition for Review in the Nature of a Complaint in Mandamus. For the reasons set forth below, we affirm the Commonwealth Court's order denying Appellant relief on his petition for mandamus.

Appellant was convicted of robbery, possessing an instrument of crime, and carrying a firearm without a license in 1982. In November of 1983, the Court of Common Pleas of Philadelphia County sentenced Appellant to a term of imprisonment of seven and one-half to fifteen years. On February 23, 1994, Appellant was paroled to the Bethesda Manor Halfway Back facility (Bethesda Manor) in Philadelphia. Approximately five months later, on July 20, 1994, Appellant fled from the facility.

On March 17, 1998, Philadelphia police arrested Appellant for burglary, criminal trespass, theft, receiving stolen property, and criminal conspiracy allegedly arising from a new criminal episode. The following day, the Pennsylvania Board of Probation and Parole ("Board") lodged a detainer against Appellant for technical parole violations. On April 4, 1999 Appellant was tried and acquitted of the new criminal charges. At a parole hearing before the Board on July 14, 1999, Petitioner pled guilty to technical parole violations, specifically, leaving Bethesda Manor without authorization, failing to report upon discharge, and violating curfew. On September 2, 1999, the Board recommitted Appellant to serve eighteen months of back-time for the multiple technical parole violations relating to his flight from Bethesda Manor in 1994, and stated that Appellant would be listed for parole on the next available docket.¹ Appellant's parole violation maximum term will expire on April 19, 2005.

On October 5, 1999, Appellant received a sentence status report indicating that the Immigration and Naturalization Service (INS) had lodged a detainer against him for possible deportation.² Thereafter, on December 28, 1999, Appellant became eligible for parole and the Board interviewed him to consider granting parole. After the interview and a review of his file, the Board continued the proceeding pending receipt of the Department of Corrections' recommendation in light of Appellant's discharge from a substance abuse program and to await an updated status report from the INS, regarding Appellant's possible deportation. Following another interview and a re-review of Appellant's file, the Board ultimately denied parole on May 3, 2000, because the Board did not yet have the updated INS status report and because of the Board's finding that its mandate to protect the safety of the public and to assist in the fair administration of justice could not be achieved through Appellant's release.

The crux of the controversy in this case is that the Board based its findings on the Parole Act, which the legislature amended in 1996. See 61 Pa.C.S. § 331.1 (1996). Prior to the 1996 amendment, the Parole Act provided:

The value of parole as a disciplinary and corrective influence and process is hereby recognized, and it is declared to be the public policy of this Commonwealth that persons subject or sentenced to imprisonment for crime shall, on release therefrom, be subjected to a period of parole ...

61 Pa.C.S. § 331.1 (1995) (hereafter, "pre-1996 Parole Act"). After the legislature amended this section of the Parole Act in 1996, it provides:

... the board shall first and foremost seek to protect the safety of the public. In addition to this goal, the board shall address input by crime victims and assist in the fair administration of justice by ensuring the custody, control, and treatment of paroled offenders.

61 Pa.C.S. § 331.1 (1996) (hereafter, "the 1996 amendment.") The issue here is whether the Board should have applied the pre-1996 Parole Act criteria to Appellant rather than the 1996 amendment.

Another review was ordered for February, 2000. At this review, the Board interviewed Appellant and informed him that he had failed to complete his mandatory therapeutic substance abuse program, failed to obtain a favorable recommendation from the Department of Corrections, and, moreover, the Board still did not have an updated INS report. Consequently, the Board denied parole the second time concluding that the fair administration of justice could not be achieved through Appellant's release. The Board again reviewed Appellant's eligibility for parole in February of 2002, but refused to parole him for the same reasons it denied parole in February of 2001.³

Evidently believing his continued incarceration to be unlawful, Appellant filed a mandamus petition with the Commonwealth Court, seeking to compel the Board to grant him parole. Specifically, Appellant argued that the Board, through its denial of parole, had continuously violated the ex post facto clause of the Pennsylvania and United States Constitutions because the Board had applied the criteria of the 1996 amendment to Appellant.⁴ Further, Appellant claimed that the Board abused its discretion by imposing back-time in excess of the maximum presumptive range⁵ for a technical parole violation, and abused its discretion by refusing to parole Appellant to the INS.⁶

By per curiam order, the Commonwealth Court dismissed Appellant's petition, stating that "denial of parole is not appealable" pursuant to that court's decisions in Reider v. Pa. Bd. of Prob. & Parole, 100 Pa.Cmwlth. 333, 514 A.2d 967 (1986) (holding that the action of denying parole is not an adjudication subject to judicial review) and Stewart v. Pa. Bd. of Prob. & Parole, 714 A.2d 502 (Pa.Cmwlth.1998) (holding that parole is not a right in Pennsylvania). Cmwlth. Ct. Order, 4/9/2002. The court, therefore, failed to address the specific claims made by Appellant. Acting pro se, Appellant filed this direct appeal, in which he raises five issues for our review:⁷ (1) Whether the Commonwealth Court failed to follow Coady v. Vaughn, 564 Pa. 604, 770 A.2d 287 (2001) when it dismissed Appellant's mandamus petition; (2) whether applying the 1996 amendment to Appellant violates the ex post facto clause; (3) whether the Board abused it discretion by inquiring into the status of the INS detainer; (4) whether the Board abused its discretion by imposing back-time in excess of the maximum presumptive range without written justification; (5) and whether the Board's decision to deny parole is an adjudication subject to appeal. We will address these five issues seriatim.⁸

I. Mandamus

Appellant argues that the Commonwealth Court erred in refusing to review his claim that the Board violated the ex post facto clause when it applied the 1996 amendment to him, because such a claim, Appellant argues, may properly be raised in an action for mandamus pursuant to this Court's decision in Coady. As set forth in the following discussion, while we agree with Appellant that the Commonwealth Court erred in failing to review this claim pursuant to our prior decision in Coady, we nevertheless conclude that the claim does not entitle Appellant to relief.

Mandamus is an extraordinary writ "which will only lie to compel official performance of a ministerial act or mandatory duty where there is a clear legal right in the [petitioner], a corresponding duty in the [respondent], and want of any other adequate and appropriate remedy." Bronson v. Pa. Bd. of Prob. & Parole, 491 Pa. 549, 421 A.2d 1021, 1023 (1980). Further, mandamus will not lie to compel a discretionary act, nor will it restrain official activities. Id. See also Commonwealth v. Vladyka, 425 Pa. 603, 229 A.2d 920 (1967). "While [potential parolees] are not entitled to appellate review of a [Board] decision, they may be entitled to pursue allegations of constitutional violations against the [Board] through a writ of mandamus." Rogers v. Pa. Bd. of Prob. & Parole, 555 Pa. 285, 724 A.2d 319, 323 n. 5 (1999); see also Coady, 770 A.2d at 289

.

Coady exemplifies these principles. There, a majority of this Court held that mandamus is not the proper avenue for presenting a challenge to the Board's discretionary decision to deny parole. Coady, 770 A.2d at 290. We went on to hold, however, that where a challenge to the Board's decision to deny parole is based on the Board's application of new statutory criteria, rather than on some exercise of the Board's discretion, a mandamus action is a viable means for examining whether statutory requirements have been altered in a manner that violates the ex post facto clause. Id. at 290. Under the plain terms of Coady, then, Appellant is correct that the Commonwealth Court should have reviewed the merits of the ex post facto claim raised in his mandamus petition.

There is, however, no need to remand this case to the Commonwealth Court for such consideration, because, as concluded in the remaining discussion, Appellant has not recited a sufficient factual premise (under our fact-pleading system of jurisprudence), to warrant an evidentiary hearing exploring the merits of his claims. See Pa.R.C.P. 1019(a) ("The material facts on which a cause of action or defense is based shall be stated in a concise and summary form").

II.A. The ex post facto clause and the 1996 amendment

The crux of Appellant's argument before this Court is that since 1996, the Board has continuously violated the ex post facto clause by retroactively applying the 1996 amendment, 61 P.S. § 331.1, to prisoners convicted prior to its e...