Weaver v. Pennsylvania Bd. of Probation and Parole

• Citation: 688 A.2d 766
• Parties: Ronald D. WEAVER, Petitioner, v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE and The Pennsylvania Department Of Corrections, Respondents.
• Decision Date: 30 January 1997
• Court: Commonwealth Court of Pennsylvania

Page 766

688 A.2d 766

Ronald D. WEAVER, Petitioner, v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE and The Pennsylvania Department Of Corrections, Respondents.

Commonwealth Court of Pennsylvania.

Submitted Oct. 9, 1996.

Decided Jan. 30, 1997.

Ronald D. Weaver, petitioner, for himself.

Robert A. Greevy, Assistant Chief Counsel, Harrisburg, for respondent.

Before COLINS, President Judge, and DOYLE, SMITH, PELLEGRINI, FRIEDMAN, FLAHERTY and LEADBETTER, JJ.

PELLEGRINI, Judge.

Presently before this Court are the preliminary objections filed by the Pennsylvania Board of Probation and Parole (Board) in response to a petition for writ of mandamus or other appropriate relief filed by Ronald D. Weaver (Weaver). ¹

Weaver was convicted of and sentenced for the offenses of rape and involuntary deviate sexual intercourse. On August 31, 1995, after the minimum expiration date for Weaver's convictions, the Board refused to parole Weaver. In its decision, the Board stated the following general reasons for its refusal:

Refuse. Assaultive instant offense. Very high assaultive behavior potential. Victim injury. Your need for treatment. Failure to participate in and benefit from a treatment program for sex offenders. Unfavorable recommendation from the Department of Corrections.

Review in May 1997.

You must participate in sex offender treatment, stress and anger management and prescriptive programming. You must maintain a clear conduct record. You must earn an institutional recommendation for parole.

On October 23, 1995, Weaver filed a petition ² with this Court seeking to be released on parole, or alternatively, that the Board and the Department of Corrections (Department) be directed to appear before this Court to show cause why it should not be required to release him on parole. In his petition, Weaver alleges that while the Department staff told him that he had an excellent prison record and would be eligible for parole, a unit manager at the prison where he was incarcerated told him that he would never be recommended for parole because he would not admit guilt, a requirement of the Institutional Sex Offender Program. Weaver further alleges that he was told by one Board member that he was being denied parole solely because he would not admit guilt in order to participate in the treatment program.

Based on these allegations, Weaver claims that his constitutional rights are being violated because:

requiring an admission of guilt into the Institutional Sex Offender Program violates his Fifth Amendment right not to incriminate himself;

his appeals from his criminal convictions are still pending and to require him to state that he committed the crime would be forcing him to commit perjury; ³

the Board discriminates against individuals convicted of sex-related crimes by requiring an admission of guilt when no such admission is required from prisoners with other types of convictions. ⁴

Weaver also alleges that the Department and the Board have conspired to force him to incriminate himself, contrary to his Fifth Amendment privilege against self-incrimination.

The Board then filed the present preliminary objections to Weaver's petition. Citing to Reider v. Pennsylvania Board of Probation and Parole, 100 Pa.Cmwlth. 333, 514 A.2d 967 (1986), the Board has demurred to the petition, alleging that a decision to refuse or grant parole is not reviewable. ⁵ Additionally, the Board also objected to the relief sought by Weaver, arguing that since Weaver is requesting to be released from prison, he has effectively filed a writ of habeas corpus, an action that this Court is without jurisdiction to hear. ⁶

I.

A.

The options for a prisoner seeking review of the Board's failure to grant parole are very limited due to the nature of parole itself. Akin to determinations regarding the level of incarceration that is needed for a particular prisoner, e.g., maximum-minimum security prison or a halfway house, parole is a penological measure for the disciplinary treatment of prisoners who seem capable of rehabilitation outside of the prison. Rivenbark v. Board of Probation and Parole, 509 Pa. 248, 501 A.2d 1110 (1985). A grant of parole does not eliminate a prisoner's sentence, but instead, the prisoner continues to serve his sentence during which time he or she is the subject of society's rehabilitation efforts under supervision. Commonwealth v. Homoki, 423 Pa. Superior Ct. 320, 621 A.2d 136 (1993), petition for allowance of appeal denied, 535 Pa. 675, 636 A.2d 634 (1993).

The Board's decision to grant or deny parole is not a decision in the ordinary sense, because, when released, a parolee is continuing to serve his or her sentence. Parole is nothing more than a possibility, and, when granted, it is nothing more than a favor granted upon a prisoner by the state as a matter of grace and mercy shown by the Commonwealth to a convict who has demonstrated a probability of his ability to function as a law abiding citizen in society. Ughbanks v. Armstrong, 208 U.S. 481, 28 S.Ct. 372, 52 L.Ed. 582 (1908); Keastead v. Board of Probation and Parole, 100 Pa.Cmwlth. 84, 514 A.2d 265 (1986). Because it is a favor, a prisoner has neither an absolute right to parole nor a liberty interest in receiving parole. Id.; see also Krantz v. Board of Probation and Parole, 86 Pa.Cmwlth. 38, 483 A.2d 1044 (1984). In other words, in Pennsylvania, a prisoner has no constitutionally protected liberty interest in being released from confinement prior to the expiration of his or her maximum term. Tubbs v. Board of Probation and Parole, 152 Pa.Cmwlth. 627, 620 A.2d 584 (1993), petition for allowance of appeal denied, 536 Pa. 635, 637 A.2d 295 (1993).

Because parole is a favor that lies solely within the Board's discretion, and because a prisoner lacks a liberty interest in being paroled, it has been consistently held that a prisoner has no right to appeal a decision of the Board denying a request for parole. Reider v. Board of Probation and Parole, 100 Pa.Cmwlth. 333, 514 A.2d 967 (1986); ⁷ King v. Board of Probation and Parole, 111 Pa.Cmwlth. 392, 534 A.2d 150 (1987); Tubbs; Lord v. Board of Probation and Parole, 135 Pa.Cmwlth. 225, 580 A.2d 463 (1990), petition for allowance of appeal denied, 528 Pa. 619, 596 A.2d 801 (1991); see also Commonwealth ex rel. Saltzburg v. Fulcomer, 382 Pa. Superior Ct. 422, 555 A.2d 912 (1989). Recognizing that it is a "favor" or a "possibility," and that the denial of parole is not a decision of an agency in the ordinary sense, the General Assembly in the definitional section of the Administrative Agency Law ⁸ provides that the Board's denial of parole is not an adjudication subject to judicial review. Reider 514 A.2d at 970. As we observed in Reider:

Under Pennsylvania law, 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.Commonwealth Ct. 41, 467 A.2d 71 (1983), cert. denied, 466 U.S. 977, 104 S.Ct. 2358, 80 L.Ed.2d 830 (1984). The mere possibility of parole affords no constitutional rights to prisoners. See Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Moreover, a parole eligibility date, usually set at the expiration of the prisoner's minimum sentence, does not vest any right to a grant of parole upon reaching that date. See Krantz v. Pennsylvania Board of Probation and Parole, 86 Pa.Commonwealth Ct. 38, 483 A.2d 1044 (1984).... The General Assembly has granted the Board broad discretion in parole matters, Commonwealth v. Vladyka, 425 Pa. 603, 229 A.2d 920 (1967), and it is for the Board alone to determine whether or not the prisoner is sufficiently rehabilitated to serve the remainder of his sentence outside the confines of prison. Because of the breadth of the Board's discretion, we believe that we cannot interfere with the discretion of the Board in granting parole.

....

What the Board has decided, and why, being wholly a matter of the Board's discretion, is simply not subject to judicial review.

Reider, at 971-72. At present then, both the statutory and decisional law of Pennsylvania precludes an appeal from the Board's grant or denial of parole. ⁹

B.

Recently, however, the Court of Appeals for the Third Circuit predicted that our Supreme Court would not approve of our holding in Reider (or, for that matter, follow the federal courts) ¹⁰ and would allow appeals from the denial of parole involving violations of certain types of constitutional rights. Burkett v. Love, 89 F.3d 135 (3d Cir.1996). This allowed the Third Circuit to sidestep a prisoner's habeas corpus petition under 28 U.S.C. § 2254 which it would have been required to hear if appeals were not allowed under Reider, thus controlling its docket.

In Burkett, a state prisoner had filed a habeas corpus petition in a federal court against the Commonwealth of Pennsylvania claiming that the Board unconstitutionally denied him parole in retaliation for his successful pursuit of prior federal habeas corpus proceedings. The Third Circuit, after observing that Burkett was required to exhaust all available state remedies prior to instituting a federal habeas corpus action, proceeded to examine whether Pennsylvania had any means by which Burkett could seek relief. It predicted that our Supreme Court would hold that Reider was not controlling in an appeal from a parole decision that violated a prisoner's constitutional rights. The Third Circuit stated that:

[Such a] claim is not based on the abrogation of a liberty interest, and consequently, is not within the ambit of the reasoning underlying the decision in Reider. It is at least arguable, therefore, that [the] claim is not controlled by Reider. However, the application of that case to other instances of constitutional violations shows that the Commonwealth Court has given the holding a broad sweep.

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