Stewart v. Pennsylvania Bd. of Probation and Parole

• Decision Date: 24 June 1998
• Citation: 714 A.2d 502
• Parties: Stanley STEWART, Petitioner, v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE and Department of Corrections, Respondents.
• Court: Pennsylvania Commonwealth Court

Page 502

714 A.2d 502

Stanley STEWART, Petitioner, v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE and Department of Corrections, Respondents.

Commonwealth Court of Pennsylvania.

Submitted on Briefs April 9, 1998.

Decided June 24, 1998.

Stanley Stewart, petitioner, for himself.

Arthur R. Thomas, Harrisburg, for respondent.

Before DOYLE and FLAHERTY, JJ., and MIRARCHI, Jr., Senior Judge.

DOYLE, Judge.

Before this court in our original jurisdiction are preliminary objections filed by the Department of Corrections and the Pennsylvania Board of Probation and Parole (collectively, Respondents) to a petition for review filed pro se by Stanley Stewart (Petitioner), an individual incarcerated at State Correctional Institution-Graterford (SCIG).

In his petition Petitioner asserts that Respondents have established arbitrary policies that deny inmates parole solely on the basis of their original offenses so that Respondents may "gain proceeds" from the state and federal governments. He seeks declaratory and injunctive relief on the basis of violation of his constitutional rights.

Specifically, Petitioner avers that he was convicted of robbery and sentenced to serve four to ten years effective July 17, 1992. Petitioner's sentence status change report also reveals a one to two year underlapping sentence for simple assault. He was reviewed for parole in November of 1997 and the Pennsylvania Board of Probation and Parole (Parole Board) denied parole in a decision recorded on January 6, 1997. It listed the following reasons for refusal:

1. Substance Abuse

2. Assaultive Instant Offense

3. Weapon Involved in the Commission of an Offense

4. Your Need for Vocational Training

5. Unfavorable Recommendation from the Department of Corrections

Although Petitioner does not assert that any of the above statements are false per se, he does aver that despite the stated reasons he was denied parole only because he has been classified as a violent offender and that his parole denial is based only upon the crimes Respondents have filed several preliminary objections to the petition for review, ² and we conclude that, except for the demurrer and the lack of original jurisdiction, the objections have been waived on the basis that Respondents failed to brief them. ³ Thus, we confine ourselves to the question of whether Petitioner has stated a cause of action. A demurrer may only be sustained when on the face of the complaint the law will not permit recovery. Stone & Edwards Insurance Agency, Inc. v. Department of Insurance, 151 Pa.Cmwlth. 266, 616 A.2d 1060 (1992), affirmed, 538 Pa. 276, 648 A.2d 304 (1994). All well-pled allegations must be accepted as true. Id.

of others, including Robert "mudman" Simon. ¹

Petitioner asserts several specific constitutional violations in his petition for review, and we shall consider them seriately. First, however, some background is necessary to understand the basis for Petitioner's claims.

FEDERAL HISTORY

In 1996, Congress substantially revised a prior 1994 law dealing with federal grants to states that have or would implement correctional policies and programs, including truth-in-sentencing laws that ensure that violent offenders serve a substantial portion of their sentences behind bars. Under the 1996 amendments to what is commonly known as the Violent Incarceration and Truth-in-Sentencing Incentive Grants Act (Federal Act) ⁴ these federal grants can be used by qualifying states to build and expand correctional facilities to increase the bed capacity for violent offenders, to build or expand temporary or permanent correctional facilities such as boot camps in order to create more space for non-violent offenders so that suitable existing prison space can be used for violent offenders, and to build or expand jails. 42 U.S.C. § 13702. The Federal Act creates two types of grants, violent offender incarceration grants and truth-in-sentencing initiative grants.

To be eligible for a Violent Offender Incarceration Grant:

[A] State shall submit an application to the Attorney General that provides assurances that the State has implemented, or will implement, correctional policies and programs, including truth-in-sentencing laws that ensure that violent offenders serve a substantial portion of the sentences imposed, that are designed to provide sufficiently severe punishment for violent offenders, including violent juvenile offenders, and that the prison time served is appropriately related to the determination that the inmate is a violent offender and for a period of time deemed necessary to protect the public.

42 U.S.C. § 13703(a).

In addition, there are additional grant monies available to states that can demonstrate an increased percentage of persons sentenced and time served, 42 U.S.C. § 13703(b), and for states that can demonstrate Truth-in-Sentencing Incentive Grants are eligible to a state that demonstrates to the U.S. Attorney General that:

an increased rate of incarceration and percentage of sentence served. 42 U.S.C. § 13703(c). "Violent crimes" (referred to as "part 1 violent crimes") in the Federal Act are defined as "murder and nonnegligent manslaughter, forcible rape, robbery, and aggravated assault as reported to the Federal Bureau of Investigation for purposes of the Uniform Crime Reports...." 42 U.S.C. § 13701(2).

(1) such State has implemented truth-in-sentencing laws that

(A) require persons convicted of a part 1 violent crime to serve not less than 85 percent of the sentence imposed (without counting time not actually served, such as administrative or statutory incentives for good behavior); or

(B) result in persons convicted of a part 1 violent crime serving on average not less than 85 percent of the sentence imposed (without counting time not actually served, such as administrative or statutory incentives for good behavior);

(2) such State has truth-in-sentencing laws that have been enacted, but not yet implemented, that require such State, not later than 3 years after such State submits an application to the Attorney General, to provide that persons convicted of a part 1 violent crime serve not less than 85 percent of the sentence imposed (without counting time not actually served, such as administrative or statutory incentives for good behavior); or

(3) in the case of a State that on April 26, 1996 [date of the amendment to the Federal Act] practices indeterminate sentencing, with regard to any part 1 violent crime

(A) persons convicted of a part 1 violent crime on average serve not less than 85 percent of the prison term established under the State's sentencing and release guidelines; or

(B) persons convicted of a part 1 violent crime on average serve not less than 85 percent of the maximum prison term allowed under the sentence imposed by the court (not counting time not actually served such as administrative or statutory incentives for good behavior).

42 U.S.C. § 13704(a).

With this background to the Federal Act in mind, we shall now consider Petitioner's arguments.

DUE PROCESS CLAIMS

Petitioner's first constitutional claim is that he has been denied due process of law. ⁵ He reasons that Pennsylvania has not enacted a Truth-in-Sentencing Law and, therefore, that the Commonwealth is proceeding under subsection (3) of Section 13704 of the Federal Act. That subsection, as hereinbefore stated, pertains to states practicing "indeterminate sentencing" ⁶ and petitioner argues that Pennsylvania no longer does so, relying on Section 9721(e) of the Sentencing Code, 42 Pa.C.S. § 9721(e). He thus asserts that Pennsylvania has no authority to participate in the federal grant programs and that the unauthorized use of these programs by the state constitutes a denial of due process to him insofar as it serves as an across the board basis for parole denial for violent offenders until they have served at least 85 percent of their prison terms.

Section 9721(e) of the Sentencing Code provides:

Term of Imprisonment.-All sentences of imprisonment imposed under this chapter shall be for a definite term. (Emphasis added.)

Petitioner construes this language to mean that Pennsylvania no longer practices indefinite sentencing. However, Section 9756 of (a) General rule.-In imposing a sentence of total confinement the Court shall at the time of sentencing specify any maximum period up to the limit authorized by law and whether the sentence shall commence in a correctional or other appropriate institution.

the Sentencing Code, 42 Pa.C.S. § 9756, which relates to sentences of total confinement, such as petitioner's, provides:

(b) Minimum sentence.-The court shall impose a minimum sentence of confinement which shall not exceed one-half of the maximum sentence imposed.

....

Further, Section 21 of what is commonly known as the Parole Act, Act of August 6, 1941 P.L. 861, as amended, 61 P.S. § 331.21, provides:

The board is hereby authorized to release on parole any convict confined in any penal institution of this Commonwealth as to whom power to parole is herein granted to said board, except convicts condemned to death or serving life imprisonment, whenever in its opinion the best interests of the convict justify or require his being paroled and it does not appear that the interests of the Commonwealth will be injured thereby. The power to parole herein granted to the Board of Parole may not be exercised in the board's discretion at any time before, but only after, the expiration of the minimum term of imprisonment fixed by the court in its sentence or by the Pardon Board in a sentence which has been reduced by commutation....

(Emphasis added.)

The provisions of Section 9756 of the Sentencing Code and Section 21 of the Parole Act clearly envision a scheme of indefinite sentencing as defined in Section 13704(3) of the Federal Act. In addition, the two state statutes together also fit the definition of a "Indeterminate (indefinite) sentence" as espoused in Black's Law Dictionary...