Myers v. Ridge

• Decision Date: 15 May 1998
• Citation: 712 A.2d 791
• Parties: Joseph MYERS, Petitioner, v. Thomas RIDGE, Governor; Pennsylvania Board of Probation and Parole; Martin F. Horn, Commissioner of Corrections, Respondents.
• Court: Pennsylvania Commonwealth Court

Page 791

712 A.2d 791

Joseph MYERS, Petitioner, v. Thomas RIDGE, Governor; Pennsylvania Board of Probation and Parole; Martin F. Horn, Commissioner of

Corrections, Respondents.

Commonwealth Court of Pennsylvania.

Submitted on Briefs Nov. 21, 1997.

Decided May 15, 1998.

Joseph Myers, petitioner, for himself.

Mary C. Bodo, Harrisburg, for respondent, Probation and Parole.

Sarah Vandenbraak, Camp Hill, for respondent, Dept. of Corrections.

Before PELLEGRINI and KELLEY, JJ., and NARICK, Senior Judge.

KELLEY, Judge.

Before this court are the preliminary objections of Governor Thomas Ridge, the Pennsylvania Board of Probation and Parole (Board) and Martin F. Horn, Commissioner of the Pennsylvania Department of Corrections (collectively, Respondents) to Joseph Myers' pro se petition for review of the decision of the Board denying his application for parole from the State Correctional Institution at Huntingdon.

In 1982, Myers and his cousin (co-defendant) were arrested and charged with murder and other related offenses. Myers was convicted of third-degree murder and was sentenced to a term of 10 to 20 years on July 23, 1986. In 1994 upon the expiration of his minimum sentence, and again in 1995, Myers applied for parole. Both applications were reviewed and denied by the Board.

In 1996, Myers again submitted an application for parole. By decision dated October 16, 1996, the Board denied Myers' application citing the following reasons for its denial: substance abuse, habitual offender, assaultive instant offense, victim death, weapon involved in the commission of offense, need for continued counseling and seriousness of the offense. The decision advised Myers that he must continue to participate in a prescriptive program plan, maintain a clear conduct record and maintain an institutional recommendation for parole. The decision further stated that Myers would be "review[ed] in August, 1997, or earlier, if recommended by the appropriate institutional staff because of demonstrable benefit from participation in community corrections center."

On June 16, 1997, Myers filed a petition for review in the nature of a mandamus in this court's original jurisdiction requesting relief in the form of a declaratory judgment, injunctive relief and equitable relief. Myers avers that (1) Commissioner Horn deprived him of due process by precluding him from participating in a community corrections center; (2) the Board deprived him of due process by denying him a fair parole review; (3) Respondents retroactively applied provisions of what is commonly known as the Parole Act ¹ and internal Board policies in violation of the prohibition against ex post facto laws; and (4) Respondents denied him equal protection under the law.

Respondents filed preliminary objections on July 23, 1997. Respondents assert that Myers has failed to: (1) allege any loss of liberty as a result of Commissioner Horn's failure to refer him to a community corrections center; (2) state a cause of action against the Board for denial of his application for parole; (3) establish a violation of the prohibition against ex post facto laws; and (4) state a cause of action against the Respondents for a violation of his equal protection rights under the Fourteenth Amendment.

In our original jurisdiction, an action in mandamus must define the issues, and every act or performance essential to that act must be set forth in the complaint. See Pa.R.C.P. No. 1019. In ruling upon preliminary objections in the nature of a demurrer, we must accept as true all well-pleaded allegations of material fact and all inferences reasonably deducible therefrom. Stone and Edwards Insurance Agency, Inc. v. Department of Insurance, 151 Pa.Cmwlth. 266, 616 A.2d 1060 (1992). However, we need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations or expressions of opinion. Giffin v. Chronister, 151 Pa.Cmwlth. 286, 616 A.2d 1070 (1992). The test is whether it is clear from all of the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish his or her right to relief. Firing v. Kephart, 466 Pa. 560, 563, 353 A.2d 833, 835 (1976).

Preliminarily, we note that parole is not a right in Pennsylvania, but a matter of grace. Commonwealth v. Brittingham, 442 Pa. 241, 275 A.2d 83 (1971); Reider v. Pennsylvania Board of Probation and Parole, 100 Pa.Cmwlth. 333, 514 A.2d 967 (1986). The Board has been granted broad discretion in parole matters and what the Board decides, and why, being wholly a matter of the Board's discretion, is simply not subject to judicial review. Reider v. Pennsylvania Board of Probation and Parole, 100 Pa.Cmwlth. 333, 514 A.2d 967, 971-72 (1986). It is for the Board alone to determine whether or not a prisoner is sufficiently rehabilitated to serve the remainder of his sentence outside the confines of prison. Id. As a result, decisions to grant or deny parole are generally not appealable except to the extent that a constitutional or statutory violation has occurred. Lawson v. Commonwealth, Department of Corrections, 114 Pa.Cmwlth. 573, 539 A.2d 69 (1988).

1. DUE PROCESS

The Board's first preliminary objection to Myers' petition for review is that Myers has failed to allege any loss of liberty as a result of Respondent Horn's refusal to refer Myers to a community corrections center. We agree.

The Fourteenth Amendment of the United States Constitution provides that "no state shall make or enforce any law which shall ... deprive any person of life, liberty, or property, without due process of law." In order to determine that a constitutional violation has occurred, this court must first determine whether a protected liberty interest exists. Wilder v. Department of Corrections, 673 A.2d 30 (Pa.Cmwlth.1996) petition for allowance of appeal denied, 545 Pa. 673, 681 A.2d 1344 (1996).

We have consistently held that a prisoner has no constitutionally protected liberty interest in the expectation of being released from confinement prior to the expiration of the maximum term of the imposed sentence. Blair v. Pennsylvania Board of Probation and Parole, 78 Pa.Cmwlth. 41, 467 A.2d 71 (1983), cert. denied, 466 U.S. 977, 104 S.Ct. 2358, 80 L.Ed.2d 830 (1984). We have similarly held that participation in a prerelease program does not constitute a protected liberty interest. Wilder; Lawson. Rather, participation in a prerelease program, such as a community corrections center, is a special privilege granted for satisfactory behavior while incarcerated. Auberzinski v. Board of Probation and Parole, 690 A.2d 776 (Pa.Cmwlth.1997); Lawson.

Since participation in a community corrections center is not a protected liberty interest, Myers will be unable to make a rational argument in law or fact that Respondent Horn's refusal to refer Myers to a prerelease program violated his constitutional right to due process. Accordingly, Respondents' preliminary objection to Myers' due process claim is sustained.

2. EX POST FACTO

Respondents next contend that Myers has failed to state a cause of action against Respondents for violation of the constitutional prohibition against ex post facto laws. We agree.

The General Assembly has exclusive power to determine the penological system of the Commonwealth, including the power to establish a system of parole. Commonwealth ex rel. Banks v. Cain, 345 Pa. 581, 28 A.2d 897 (1942); Commonwealth v. Maroney, 177 Pa. Superior Ct. 82, 110 A.2d 822 (1955). This power necessarily includes the authority to make such changes in terms and conditions of parole as the General Assembly may see fit. Maroney. In other words, there is no constitutional guarantee against change in the law relating to parole. Id. Nevertheless, such a change in the law may not be in violation of the prohibition against ex post facto laws. U.S. Const. art. I, § 10; Pa. Const. art. I, § 17.

For a law to be ex post facto it must impose a punishment for an act which was not punishable at the time it was committed or impose additional punishment to that then prescribed. Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). Two critical elements are necessary to establish an ex post facto claim. Id. First, the law must be retrospective, that is, it must apply to events occurring before its enactment. Id. Second, it must disadvantage the offender affected by it. An exception to this rule is that if the statutory change does not prejudicially affect the substantive rights of the parties and is merely procedural or remedial in nature, it can apply retroactively. See Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 53 L.Ed.2d 344, (1977), cert. denied, 448 U.S. 916, 101 S.Ct. 37 (1980), ("Even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto."); see also Weaver.

a. Fair Parole Review

Myers contends that the Board violated the ex post facto clause as well as his due process rights to a fair parole review by retroactively applying section 34.1 of the Parole Act. ² We disagree.

Section 34.1 was added as part of the 1995 amendments to the Parole Act and became effective on July 31, 1995. Section 34.1(a)(3) provides that the Board is not permitted to "act upon" an application of an inmate who is serving a term of imprisonment for a crime Myers relies upon the case of Mickens-Thomas v. Pennsylvania Board of Probation and Parole, 699 A.2d 792 (Pa.Cmwlth.1997), in support of his position that the Board was not permitted to retroactively condition his release upon participation in a prerelease center. In Mickens-Thomas, upon the prisoner's parole eligibility following the commutation of his sentence, the Board refused to consider his application for parole due to his failure to serve at least one year in a prerelease center as required by section 34.1(a)(3). The prisoner filed an action in mandamus contending, inter alia, that the retroactive application of ...