Hall v. PA BD. OF PROBATION AND PAROLE

• Decision Date: 22 June 2004
• Citation: 578 Pa. 245,851 A.2d 859
• Parties: Bryan P. HALL, Appellant v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Appellee.
• Court: Pennsylvania Supreme Court

851 A.2d 859

578 Pa. 245

Bryan P. HALL, Appellant v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Appellee.

Supreme Court of Pennsylvania.

Submitted July 9, 2003.

Decided June 22, 2004.

Bryan P. Hall, pro se.

Robert Campolongo, Arthur R. Thomas, Calvin Royer Koons, Harrisburg, for PA Bd. of Probation and Parole.

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

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

Justice NEWMAN.

Bryan P. Hall (Hall) appeals from an Order of the Commonwealth Court, which dismissed his pro se Petition for Review in the Nature of Mandamus, brought in the original jurisdiction of the Commonwealth Court. Hall contends that the Pennsylvania Board of Probation and Parole (Board) improperly denied his numerous requests for parole by judging his applications pursuant to standards enacted in 1996, five years after his date of sentence. For the reasons discussed herein, we affirm the Order of the Commonwealth Court.

FACTS AND PROCEDURAL HISTORY

Hall is currently serving a prison sentence of four to twenty years at the State Correctional Institution in Dallas, Pennsylvania, for convictions of aggravated assault,¹ aggravated indecent assault,² and related charges stemming from his arrest on June 26, 1991. Hall, who has been incarcerated since his arrest, had a minimum sentence date of June 28, 1995, and a maximum sentence date of June 28, 2011. He appeared before the Board on May 24, 1995, in anticipation of the expiry of his minimum sentence term. In a decision dated June 13, 1995, the Board denied parole based on the following factors: (1) substance abuse; (2) habitual offender; (3) assaultive instant offense; (4) very high assaultive behavior potential; (5) the need for treatment; (6) failure to benefit from treatment programs for sex offenders or substance abuse; and (7) an unfavorable recommendation from the Department of Corrections. Reproduced Record (R.R.) at A-1. The Board informed Hall that to improve his parole candidacy he: (1) must participate in prescriptive programs; (2) maintain a clear conduct record; and (3) earn an institutional recommendation from the Department of Corrections. Id.

From 1996 through 1998, on an annual basis, Hall appeared before the Board, which rejected his parole requests, citing itemized reasons and indicators that it would review at his next parole hearing. Id. at A-2, A-3, A-4. Hall again appeared before the Board on March 11, 1999. Again, the Board denied parole, this time explaining that "[f]ollowing an interview and review of your file, the Pennsylvania Board of Probation and Parole has determined that the mandates to protect the safety of the public and to assist in the fair administration of justice cannot be achieved through your release on parole." Id. at A-5. The Board used the same language in a decision denying parole filed in 2000. Id. at A-6. The Board supported its parole denials on April 10, 2001, and June 13, 2002, with the following language "[f]ollowing an interview and review of your file, the Pennsylvania Board of Probation and Parole has determined that the fair administration of justice cannot be achieved through your release on parole." Id. at A-7, A-8.

On July 9, 2002, Hall filed a pro se Petition for Review in the nature of a request for mandamus in the original jurisdiction of the Commonwealth Court. Hall contended that the 1996 amendments to the Parole Act³ materially changed the criteria for granting and denying parole, and that application of the amended Parole Act to his parole requests violated the constitutional prohibition against ex post facto laws. Specifically, Hall contended that the 1996 amendments shifted the policy statement of the Board from one that recognized the "value of parole as a disciplinary and corrective influence and process" to one that emphasizes the protection of public safety. 61 P.S. § 331.1 (1995 and 2003). The Board sought a stay of the matter pending the Commonwealth Court's disposition of Reynolds v. Pennsylvania Board of Probation and Parole, 809 A.2d 426 (Pa.Cmwlth.2002). The Commonwealth Court decided Reynolds on October 21, 2002, rejecting similar arguments to those presented sub judice.

On October 28, 2002, while the Commonwealth Court proceedings were stayed, the Board modified its June 13, 2002 decision to deny parole to read as follows:

Following an interview with you and a review of your file, and having considered all matters required pursuant to the Parole Act of 1941, as amended, 61 P.S. § 331.1 et seq., the Board of Probation and Parole, in the exercise of its discretion, has determined at this time that: your best interests do not justify or require you being paroled/reparoled; and, the interests of the Commonwealth will be injured if you were paroled/reparoled. Therefore, you are refused parole/reparole at this time. The reasons for the Board's decision include the following:

The recommendation made by the prosecuting attorney.

Reports, evaluations and assessments concerning your physical, mental and behavior condition and history.

Other factors deemed pertinent in determining that you should not be paroled: your prior criminal history.

R.R. at A-9. On November 26, 2002, relying on Reynolds, the Commonwealth Court denied the Petition for Review filed by Hall. Hall now appeals to this Court, contending that application of the 1996 amendments to the Parole Act to his parole requests operated in contravention of the prohibition of the ex post facto clause contained in the United States Constitution. U.S. CONST. Art. I § 10 ("[n]o state shall ... pass any ... ex post facto law").

DISCUSSION

Though the claims herein presented by Hall concern application of the Parole Act, the resolution of this matter turns on the principles of separation of powers and stare decisis, rather than the substantive arguments raised by Hall.

Just last year, in Winklespecht v. Pennsylvania Board of Probation and Parole, 571 Pa. 685, 813 A.2d 688 (2002), this Court was faced, inter alia, with the exact question Hall presents today: does application of the newly-amended Parole Act to an inmate sentenced prior to the promulgation of those amendments violate the ex post facto clause of the United States Constitution?⁴ Although we filed Winklespecht as a fractured Opinion Announcing the Judgment of the Court, at least three Justices agreed that there was no ex post facto violation. See id. at 691-692 ("[t]he rewording of 61 P.S. § 331.1 did not create a substantial risk that parole would be denied any more frequently than under the previous wording, nor did the addition of this language create a new offense or increase the penalty for an existing offense") (Opinion Announcing the Judgment of the Court per Eakin, J.); id. at 693 ("I fully agree ... with the lead opinion's conclusion that the constitutional ex post facto claim raised here ... is entirely meritless") (Castille, J., concurring, joined by Newman, J.); id. at 697.⁵ However, subsequently, a clear majority of this Court explicitly held that application of the 1996 amendments to the Parole Act to individuals incarcerated prior to the effective date of those amendments did not violate the ex post facto clause. Finnegan v. Pennsylvania Board of Probation and Parole, 576 Pa. 59, 838 A.2d 684 (2003).⁶

Seven weeks after Winklespecht, on February 21, 2003, the United States Court of Appeals for the Third Circuit, faced with an identical substantive contention, decided Mickens-Thomas v. Vaughn, 321 F.3d 374 (3d Cir.2003). The Third Circuit rejected the determination of this Court in Winklespecht, finding instead that applying the 1996 amendments to Mickens-Thomas, who had been sentenced in 1969, violated the ex post facto prohibition. The Third Circuit found that parole policy in the Commonwealth shifted after 1996, which calculably lessened the chances that an inmate would be paroled. The Third Circuit reasoned as follows:

[P]rior to 1996, the Board's concern for potential risks to public safety could not be the sole or dominant basis for parole denial under the existing Guidelines. Considerations of public safety were already incorporated into its Guidelines analysis; the Board had to point to "unique" factors as a basis for its rejection of the Guidelines. Moreover, the Board had to weigh all factors, militating for and against parole, and make its decision on the totality of the factors pertinent to parole, and give appropriate weight to the interests of the inmate. Heavy foot application on one factor could not have been the basis of granting or rejecting parole. Policy declarations in and after 1996 demonstrate that Board stance shifted and that, indeed, post-1996 considerations of public safety became the dominant concern of the Board

Id. at 386. The Third Circuit has reaffirmed its position on at least two subsequent occasions: Hollawell v. Gillis, 65 Fed.Appx. 809 (3d Cir.2003) (memorandum), cert. denied, ___ U.S.____, 124 S.Ct. 229, 157 L.Ed.2d 136 (October 6, 2003), and McLaurin v. Larkins, 76 Fed.Appx. 415 (3d Cir.2003) (memorandum).⁷ Hall recognized this divergence in legal authority when he asked us to consider his appeal in light of Mickens-Thomas. Accordingly, given our rejection of the ex post facto argument in Winklespecht, as clarified by Finnegan, at this juncture our concern is no longer a question of whether there is an ex post facto violation, but whether we are constrained by Mickens-Thomas.

It is beyond cavil that this Court is bound by the determinations of the United States Supreme Court on issues of federal law, including the construction and interpretation of the federal constitution. Purple Orchid, Inc. v. Pennsylvania State Police, 572 Pa. 171, 813 A.2d 801, 806 (2002) (citing Pennsylvania State Police, Bureau of Liquor Control Enforcement v. Hospitality Investments of Philadelphia, Inc., 547 Pa. 142, 689 A.2d 213, 216 (1997)). However, whether or not this Court has a responsibility...