Finnegan v. BD. OF PROBATION AND PAROLE

• Decision Date: 18 December 2003
• Citation: 576 Pa. 59,838 A.2d 684
• Parties: William FINNEGAN, Appellant v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Appellee.
• Court: Pennsylvania Supreme Court

838 A.2d 684

576 Pa. 59

William FINNEGAN, Appellant v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Appellee.

Supreme Court of Pennsylvania.

Submitted May 28, 2002.

Decided December 18, 2003.

William Finnegan, Pro se.

Linda L. Laub, Etters, Robert Campolongo, Harrisburg, for Probation and Parole Board.

Before CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN, LAMB, JJ.

OPINION

Justice EAKIN.

In 1986, appellant was sentenced to 15 to 30 years incarceration for six counts of robbery, burglary, and criminal conspiracy. He was eligible for parole March 28, 2001, but after a hearing, the Pennsylvania Board of Probation and Parole refused to grant him parole on the grounds that "[t]he fair administration of justice [could not] be achieved through [appellant's] release on parole." Notice, 12/4/00. Appellant filed a pro se petition for a writ of mandamus in the Commonwealth Court seeking to compel the Board to apply the versions of the Parole Act, 61 P.S. §§ 331.1-331.4, and the parole guidelines existing at the time of his conviction. The Commonwealth Court dismissed the petition, holding mandamus was not available to compel discretionary acts, such as the grant of parole.

Mandamus is an extraordinary remedy designed to compel the performance of a ministerial act or mandatory duty on the part of a governmental body. Bronson v. Cmwlth. Bd. of Probation & Parole, 491 Pa. 549, 421 A.2d 1021, 1023 (1980). There must be (1) a clear legal right in the plaintiff, (2) a corresponding duty in the governmental body, and (3) the absence of any other adequate and appropriate remedy. Id. Further, mandamus will not lie to compel a discretionary act, nor will it restrain official activities. Id.

"A proceeding in mandamus is available to compel the Board of Probation and Parole to conduct a hearing or correct a mistake in applying the law." Id. (emphasis added). However, appellant does not possess a legal right to parole. See Rogers v. Penns. Bd. of Prob. and Parole, 555 Pa. 285, 724 A.2d 319, 321 (1999)

. Nor is the Board required to grant parole; it has broad discretion in parole matters. Id.; see also Commonwealth v. Vladyka, 425 Pa. 603, 229 A.2d 920 (1967). Thus, two of the three requirements for a writ of mandamus are absent: appellant has no right to parole, and the Board has no duty to grant it. This matter is clearly within the discretion of the Board, and "while [this] court may direct that discretion be exercised, it may not specify how that discretion is to be exercised nor require the performance of a particular discretionary act." Pennsylvania Dental Ass'n v. Cmwlth. Ins. Dept., 512 Pa. 217, 516 A.2d 647, 652 (1986).

Thus, mandamus will not lie where the substance of the board's discretionary action is the subject of the challenge. Where, however, discretionary actions and criteria are not being contested but rather the actions of the board taken pursuant to changed statutory requirements are being challenged, an action for mandamus remains viable as a means for examining whether statutory requirements have been altered in a manner that violates the ex post facto clause. Such an action could be brought in the original jurisdiction of the Commonwealth Court. Absent a change in the statutes governing parole, however, denial of parole would generally constitute a discretionary matter that is not subject to review.

Coady v. Vaughn, 564 Pa. 604, 770 A.2d 287, 290 (2001) (citation omitted). As appellant argues certain revisions to the Parole Act violate the ex post facto clause of the United States Constitution,¹ mandamus is the proper avenue for seeking relief, id.; however, we conclude his claim is meritless.

Appellant contends the 1996 changes to § 331.1 of the Parole Act made it more difficult for him to be paroled than the version of § 331.1 in effect at the time of his conviction, thus violating the ex post facto clause. This same issue was recently raised, through a habeas corpus petition, in Winklespecht v. Bd. of Probation and Parole, 571 Pa. 685, 813 A.2d 688 (2002) (plurality) (retroactive application of 1996 changes to § 331.1 was not ex post facto violation; question of propriety of habeas corpus as remedy was not reached).²

The 1996 version of § 331.1 reads:

The parole system provides several benefits to the criminal justice system, including the provision of adequate supervision of the offender while protecting the public, the opportunity for the offender to become a useful member of society and the diversion of appropriate offenders from prison.

In providing these benefits to the criminal justice system, 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 P.S. § 331.1 (emphasis added).

The prior version of § 331.1 read:

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 during which their rehabilitation, adjustment and restoration to social and economic life and activities shall be aided and facilitated by guidance and supervision under a competent and efficient parole administration, and to that end it is the intent of this act to create a uniform and exclusive system for the administration of parole in this Commonwealth.

Act 1941, Aug. 6, P.L. 861, § 1.

The United States Supreme Court has observed:

One function of the Ex Post Facto Clause is to bar enactments which, by retroactive operation, increase the punishment for a crime after its commission. Retroactive changes in laws governing parole of prisoners, in some instances, may be violative of this precept. Whether retroactive application of a particular change in parole law respects the prohibition on ex post facto legislation is often a question of particular difficulty when the discretion vested in a parole board is taken into account.

* * *

[T]o the extent there inheres in ex post facto doctrine some idea of actual or constructive notice to the criminal before commission of the offense of the penalty for the transgression we can say with some assurance that where parole is concerned discretion, by its very definition, is subject to changes in the manner in which it is informed and then exercised. The idea of discretion is that it has the capacity, and the obligation, to change and adapt based on experience. New insights into the accuracy of predictions about the offense and the risk of recidivism consequent upon the offender's release, along with a complex of other factors, will inform parole decisions.

Garner v. Jones, 529 U.S. 244, 249-50, 253, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000).

Here, the revision of 61 P.S. § 331.1 did not create any new offense or increase the penalty for an existing offense. See California Dep't. of Corrections v. Morales, 514 U.S. 499, 506 n. 3, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995)

("the focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of `disadvantage,' nor, ... on whether an amendment affects a prisoner's `opportunity to take advantages of provisions for early release'..."). Although the phrases "protect the safety of the public" and "assist in the fair administration of justice" were added in 1996, these concepts have always been underlying concerns. Both versions of § 331.1 leave the grant of parole within the discretion of the Board. Adding language which clarified the policy underlying the parole process does not make appellant's punishment more severe; his maximum sentence remains the same. See Prater v. U.S. Parole Com., 802 F.2d 948, 952 (7th Cir.1986) ("If ... the Parole Commission takes a more jaundiced view of applications for parole, the ex post facto prohibition is not violated, even though a criminal's punishment may end up being longer or harsher than he hoped when he committed the crime.").

The Third Circuit recently held the 1996 changes to § 331.1 violated the ex post facto clause, where the prisoner who sought parole had been serving a life sentence that was commuted. See Mickens-Thomas v. Vaughn, 321 F.3d 374 (3d Cir. 2003)

. In Mickens-Thomas, the Pardons Board recommended commutation of Thomas' life sentence to the Pennsylvania governor, who agreed, and commuted the sentence to a minimum term of time served with a maximum of life. See Mickens-Thomas v. Cmwlth. Bd. of Prob. and Parole, 699 A.2d 792, 794 (Pa.Cmwlth. 1997). This made Thomas immediately eligible for parole. See Pa. Const. art. IV, § 9(a). However, he was denied parole in 1997, 1998, and 2000. Thomas sought relief in federal court by application for a writ of habeas corpus. The district court held the changes to § 331.1 violated the ex post facto clause, and remanded for the Board to apply its pre-1996 policies to Thomas' case. The Board appealed to the Third Circuit, which opined Thomas had a liberty interest in receiving parole, and that interest was adversely affected by the amendment of § 331.1; the court concluded:

Pre-1996, a prisoner could be denied parole because of public safety concerns only if those concerns together with other relevant factors outweighed, by a preponderance, the liberty interests of the inmate. The 1996 policy change placed first and foremost the public safety to the disadvantage of the remaining liberty interest of the prisoner.

Mickens-Thomas, at 385. The court further observed:

The statistical evidence is quite staggering here, and strongly confirms the change in policy in 1996: of the 266 historical instances of commuted sentences on which the Board has kept records, all were granted parole on the first or second application. Many, if not most, of these original sentences were for

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