Toland v. Pa. Bd. of Prob. & Parole

• Decision Date: 29 September 2021
• Docket Number: No. 315 M.D. 2018,315 M.D. 2018
• Citation: 263 A.3d 1220
• Parties: Christopher TOLAND, Petitioner v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent
• Court: Pennsylvania Commonwealth Court

263 A.3d 1220

Christopher TOLAND, Petitioner

v.PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent

No. 315 M.D. 2018

Commonwealth Court of Pennsylvania.

Submitted on Briefs April 23, 2021

Decided September 29, 2021

Christopher Toland, Pro Se.

John C. Manning, Deputy Chief Counsel, Harrisburg, for Respondent.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY JUDGE COHN JUBELIRER

Christopher Toland (Petitioner), pro se, has filed an Amended Petition for Review/Mandamus (Amended Petition)¹ in this Court's original jurisdiction, claiming: (1) the Pennsylvania Board of Probation and Parole² (Board) violated Petitioner's due process rights by relying on false information in denying Petitioner parole; (2) the Board violated Petitioner's due process rights by exercising its discretion in an arbitrary and capricious manner; and (3) the Board's application of the standards for parole of the Prisons and Parole Code, 61 Pa.C.S. §§ 6101 - 6164 (Parole Code), violated the ex post facto prohibitions of both the United States and Pennsylvania Constitutions.³ Petitioner seeks mandamus relief, requesting that this Court compel the Board to produce all information relied upon by the Board in denying Petitioner's parole, to remove all false information from Petitioner's file, to prepare revised information to be used in Petitioner's case, and to immediately interview Petitioner for parole under the standards that existed at the time Petitioner committed the crimes.

Before the Court are the Board's Preliminary Objections to the Amended Petition, in which the Board argues that: (1) the Amended Petition lacks sufficient specificity, and, therefore, this Court should strike the allegations therein; (2) mandamus may not be used to review the Board's discretionary decision to not award parole; (3) Petitioner has not alleged sufficient facts to state a claim that the Board's refusal to grant parole constituted an ex post facto violation; and (4) Petitioner has not stated a substantive due process claim. Petitioner responds that the Board's Preliminary Objections are untimely and, even if timely, that the Amended Petition alleged sufficient facts to state both due process and ex post facto claims, which Petitioner maintains may be brought in mandamus actions. After review, we overrule the Board's Preliminary Objections because the Amended Petition's allegations were brought with sufficient specificity, Petitioner alleged sufficient facts to state an actionable ex post facto claim, and the Board has not shown that Petitioner has failed to state a substantive due process claim.

I. BACKGROUND

A. Change in the Parole Code

As the crux of the controversy in this matter concerns what statutory standards for parole should apply to guide the Board's exercise of its discretion in Petitioner's parole decisions, which have changed between the time Petitioner committed the crimes and the Board's decisions as to whether to parole Petitioner, a short summary of the changes to those standards for parole will be helpful. Prior to 1996, the Pennsylvania Board of Probation and Parole Law (Parole Law) provided a policy statement that read as follows:

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.

Former Section 1 of the Parole Law (pre-1996 Parole Law), Act of August 6, 1941, P.L. 861, formerly 61 P.S. § 331.1, repealed by the Act of August 11, 2009, P.L. 147. In 1996, the General Assembly amended the Parole Law by making public safety the primary consideration. The 1996 version stated:

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

Former Section 1 of the Parole Law, as amended by Section 1 of the Act of December 18, 1996, P.L. 1098, formerly 61 P.S. § 331.1 (1996 Amendment) (emphasis added). This statement of public policy emphasizing public safety has continued in the present version of the Parole Code, which states that "the [B]oard ... and any other paroling entity shall first and foremost seek to protect the safety of the public." Section 6102(2) of the Parole Code, 61 Pa.C.S. § 6102(2).

With this statutory history in mind, we turn to the allegations of Petitioner's Amended Petition.

B. The Amended Petition

In the Amended Petition, Petitioner alleges as follows. Petitioner is currently incarcerated at State Correctional Institution at Laurel Highlands, serving an 11- to 40-year sentence for convictions of rape, aggravated indecent assault, and other offenses. (Amended Petition (Am. Pet.) ¶¶ 1, 109, 113; Original Petition (Orig. Pet.) ¶ 43.⁴ ) Since the expiration of Petitioner's 2004 minimum sentence date, Petitioner has been interviewed and denied parole 15 times. (Am. Pet. ¶¶ 8, 11, 14, Exhibit (Ex.) A.)⁵ In its August 24, 2017 decision, the Board denied Petitioner parole based on the following reasons: (1) risks and needs assessment indicating Petitioner's level of risk to the community; (2) reports, evaluations, and assessments/level of risk indicating risk to the community; and (3) Petitioner's lack of insight with regard to Petitioner's problematic thinking as it relates to Petitioner's high-risk behaviors. (Orig. Pet., Ex. A.) The Board directed Petitioner to complete the following for its consideration in Petitioner's next parole decision: (1) maintain a favorable recommendation for parole from the Department of Corrections (DOC); and (2) maintain a clear conduct record. (Id. )

On December 6, 2018, a Board Member and a Board Hearing Examiner interviewed Petitioner for parole. (Am. Pet. ¶ 11.) Prior to this interview, Petitioner had achieved each of the Board's directives from its August 24, 2017 parole decision by continuing to earn complete parole support from DOC and maintaining a clear conduct record. (Id. ¶ 12.) Nevertheless, on December 18, 2018, the Board issued a decision again denying Petitioner parole. (Id. , Ex. A.) In its December 18, 2018 decision, the Board explained it was denying Petitioner parole because: (1) Petitioner's failure to demonstrate a motivation for success; (2) the nature of the offense; and (3) Petitioner's past criminal history of domestic violence. (Id. ) In this decision, the Board indicated that Petitioner would be reviewed in or after August 2019 and that it would then again consider whether Petitioner had maintained a favorable recommendation for parole from DOC and whether Petitioner had a clear conduct record. (Id. )

A Board Member and a Board Hearing Examiner again interviewed Petitioner for parole on August 30, 2019. Once more, Petitioner had achieved the Board's previous directives "by continuing to earn complete DOC parole support and maintaining a clear conduct record." (Id. ¶ 14.) In its October 22, 2019 decision, however, the Board again denied Petitioner parole, explaining the reasons for the denial as: (1) Petitioner's risk and needs assessment indicating a level of risk to the community; (2) reports, evaluations, and assessments indicating a risk to the community; (3) the nature of the case; (4) the nature of risk posed; and (5) the need to have significant stability time and increased age as a protective factor. (Id. , Ex. B.) In this decision, the Board indicated that Petitioner next would be reviewed in or after September 2025 and once more explained that it would then consider whether Petitioner had maintained a favorable recommendation for parole from DOC and whether Petitioner had a clear conduct record. (Id. )

In the Amended Petition, Petitioner raises three distinct claims,⁶ all of which are brought through mandamus. First, Petitioner argues that the Board violated Petitioner's due process rights by relying on false information in denying him parole. To support this claim, which refers to multiple Board decisions in order to show a pattern, Petitioner avers that, under Monroe v. Thigpen , 932 F.2d 1437 (11th Cir. 1991), and Jubilee v. Horn , 975 F. Supp. 761 (E.D. Pa. 1997),⁷ a parole board's reliance on false information in denying parole may be grounds for a substantive due process claim. (Am. Pet. ¶¶ 29-30.) Petitioner claims that during the parole interview relevant to the August 24, 2017 decision, the Board's interviewer incorrectly stated that Petitioner had been convicted of four counts of rape and that Petitioner was "praying on society[,]" statements Petitioner alleges are "completely false" and unsupported by any documents in Petitioner's file. (Id. ¶¶ 31-32.) Petitioner maintains instead that he was charged with one count of rape and one count of aggravated indecent assault, both of which stemmed from a single incident. (Orig. Pet. ¶ 43.) Further, Petitioner alleges the Board's stated reasons for denying Petitioner parole in the December 18, 2018 decision, that Petitioner had a past criminal history with domestic violence, was likewise...