IN THE COMMONWEALTH COURT OF PENNSYLVANIA James Joseph Smull, Petitioner v. No. 614 M.D. 2011 Pennsylvania Board of Probation Submitted August 17, 2012 and Parole, Respondent BEFORE HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED November 9, 2012 Presently before this Court for disposition in our original jurisdiction are the Preliminary Objections (POs) filed by the Pennsylvania Board of Probation and Parole (Parole Board) to pro se Petitioner, James Joseph Smull s Amended Mandamus Petition for Review (Amended Complaint). Upon review, we sustain the Parole Board s POs and dismiss Smull s Amended Complaint. Smull is presently incarcerated in a state correctional institution and is serving a 10- to 20-year sentence as a result of his conviction for voluntary manslaughter on January 22, 2004, in Montgomery County. (Amended Complaint
1, 3, 4.) By letter dated September 15, 2011, following an interview and review of Smull s file, the Parole Board denied Smull parole because he failed to show remorse and refused to accept responsibility for the offense committed. (Notice of Parole Board Decision at 1, Amended Complaint, Ex. 7.) On December 14, 2011, Smull filed a Mandamus Petition for Review requesting that this Court order the Parole Board to reconsider its parole denial. In response, the Parole Board filed POs and Smull filed an Amended Complaint. In his Amended Complaint, Smull avers that the Parole Board has violated his (1) Fifth Amendment right against self-incrimination; 1 and (2) substantive due process rights. The Parole Board filed the instant POs to the Amended Complaint. The Parole Board s POs include a demurrer alleging that Smull s Amended Complaint should be dismissed for failure to state a claim in mandamus. A demurrer will not be sustained unless the face of the complaint shows that the law will not permit recovery and it is clear and free from doubt that the facts pleaded are legally insufficient to establish a right to relief. Stone and Edwards Insurance Agency, Inc. v. Department of Insurance, 616 A.2d 1060, 1063 (Pa. Cmwlth. 1992). In considering preliminary objections, we accept as true all wellpled material facts and all inferences reasonably deducible from those facts. Cunningham v. Department of Corrections, 990 A.2d 1205, 1207 (Pa. Cmwlth. 2010). However, we are not required to accept as true any unwarranted factual inferences, conclusions of law, or expressions of opinion. Id. 1 The Fifth Amendment to the United States Constitution provides, in relevant part, that no person shall be compelled in any criminal case to be a witness against himself. U.S. Const. amend. V. 2
In examining the nature of parole denials by the Parole Board and whether there is a clear legal right to relief upon being denied parole that could be subject to a mandamus action, our Supreme Court has concluded that parole denials are not reviewable by the appellate courts. 2 Rogers v. Pennsylvania Board of Probation and Parole, 555 Pa. 285, 292, 724 A.2d 319, 322-23 (1999). The rationale for this conclusion is that parole denials do not constitute (1) an adjudication under Section 101 of the Administrative Agency Law, 2 Pa. C.S. 101; or (2) a liberty interest protected by the due process clause of the Fourteenth Amendment to the United States Constitution. The Supreme Court stated This Court will not undertake to create such a right as a matter of judicial fiat. To hold otherwise would defeat the clearly stated intent of the Legislature by inviting an appeal from every denial of parole and by concomitantly extending the panoply of constitutional protections that apply to parole revocations to parole denials as well, including the right to the assistance of an attorney to pursue these claims. What is now an informal agency hearing would instead become a full-fledged, adversarial proceeding with the panoply of rights required. Because we do not believe that is what the General Assembly contemplated when it adopted the parole procedure, we find that Parole Board determinations, since they do not constitute an adjudication by an agency, are not reviewable. Rogers, 555 Pa. at 292-93, 724 A.2d at 323 (emphasis in original). Thus, it is well settled in Pennsylvania that a prisoner has no legitimate expectation of being paroled after serving his minimum sentence. Winklespecht v. Pennsylvania Board of Probation and Parole, 571 Pa. 685, 690, 813 A.2d 688, 691 (2002). And, it has 2 In addition to requesting mandamus relief, Smull also attempts to appeal his parole denial. See Amended Complaint 30 (stating that the scope of review of this appeal, in accordance with 37 Pa. Code 73.1(a)(2), is limited to whether the decision is supported by substantial evidence, an error of law has been committed, or there is a violation of constitutional law). 3
been determined that there is no absolute right to be released from prison on parole upon the expiration of the minimum term. Rogers, 555 Pa. at 289, 724 A.2d at 321. Parole is nothing more than a possibility. Weaver v. Pennsylvania Board of Probation and Parole, 688 A.2d 766, 770 (Pa. Cmwlth. 1997). [P]arole is a matter of grace and mercy shown to a prisoner who has demonstrated to the Parole Board s satisfaction his future ability to function as a law-abiding member of society upon release before the expiration of the prisoner s maximum sentence. Rogers, 555 at 292, 724 A.2d at 322-23. A prisoner may apply for parole at the expiration of his minimum term and have that application considered by the Parole Board; however, if the Parole Board denies it, the period of confinement can be the maximum period of incarceration specified by the sentencing court. Id. at 289, 724 A.2d at 321. In Weaver, a prisoner sought mandamus for a parole re-evaluation after learning that he would never be recommended for parole because he would not admit guilt in order to participate in a treatment program. The prisoner alleged that a requirement to admit guilt before entering the program violated his Fifth Amendment right not to incriminate himself. This Court reasoned that [t]he options for a prisoner seeking review of the [Parole] Board s failure to grant parole are very limited due to the nature of parole itself a penological measure for the disciplinary treatment of prisoners who seem capable of rehabilitation outside of the prison. Weaver, 688 A.2d at 769. We determined that a prisoner has neither an absolute right to parole nor a liberty interest in receiving parole and that the expiration of the prisoner s minimum sentence does not vest any right to a grant of parole upon reaching that date. Id. at 770 (citing Reider v. Pennsylvania Board of 4
Probation and Parole, 514 A.2d 967, 971 (Pa. Cmwlth. 1986) (holding that the Parole Board s denial of an application for parole is uniquely one of administrative discretion and, as such, it is not subject to judicial review)). However, our review does not end here because in Rogers the Supreme Court noted that, [w]hile appellants are not entitled to appellate review of a Parole Board decision, they may be entitled to pursue allegations of constitutional violations against the Parole Board through a writ of mandamus which is an extraordinary remedy... available to compel the Parole Board to conduct a hearing or to apply the correct law. Rogers, 555 at 293 n.5, 724 A.2d at 323 n.5 (italics removed). Therefore, notwithstanding Smull s lack of any right to parole before the expiration of his maximum sentence, because Smull has alleged constitutional violations, we will consider whether such violations, if they did occur, would create a clear legal right for the mandamus relief being requested. The law is clear that mandamus is an extraordinary remedy designed to compel official performance of a ministerial act or mandatory duty. Evans v. Pennsylvania Board of Probation and Parole, 820 A.2d 904, 914 (Pa. Cmwlth. 2003). Mandamus may only be granted where there is a clear legal right in the petitioner, a corresponding duty in the respondent, and want of any other adequate and appropriate remedy. Sheffield v. Department of Corrections, 894 A.2d 836, 841 (Pa. Cmwlth. 2006). Mandamus is not available to establish legal rights, but is appropriate only to enforce rights that have been established. Byrd v. Pennsylvania Board of Probation and Parole, 826 A.2d 65, 67 (Pa. Cmwlth. 2003). Therefore, the issue becomes whether Smull has alleged a violation of a clear legal 5
right for which the Parole Board has a corresponding duty and for which no other remedy exists. In reviewing Smull s constitutional claim under the Fifth Amendment, we first observe that a valid conviction and the ensuing restrictions on liberty are essential to the Fifth Amendment analysis. Wilson v. Pennsylvania Board of Probation and Parole, 942 A.2d 270, 273 (Pa. Cmwlth. 2008) (quoting McKune v. Lile, 536 U.S. 24, 36 (2002)). The Fifth Amendment protects against compelled self-incrimination in a criminal case. Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 272-73 (1998). Thus, there must not only be compulsion, but the compulsion must arise in a criminal case. However, a parole hearing is not part of a criminal case. The United States Supreme Court has unequivocally concluded that, even in the context of parole revocation, parole is not part of a criminal prosecution [.] Morrissey v. Brewer, 408 U.S. 471, 480 (1972). Parole arises after the end of the criminal prosecution, including imposition of sentence. Id. Moreover, the United States Supreme Court has further held that a violation of the Fifth Amendment privilege occurs only if one has been compelled to be a witness against oneself in a criminal case. Chavez v. Martinez, 538 U.S. 760, 770 (2003). Here, Smull avers that he should not have to admit guilt by showing remorse or accepting responsibility for his offense. Smull alleges 3 that having to do so in order to obtain parole violates his Fifth Amendment right against self- 3 Smull relies upon Mickens-Thomas v. Vaughn, 355 F.3d 294, 301 (3d Cir. 2004), to argue that the Parole Board committed a constitutional violation in denying him parole for the stated reasons; however, that case is inapposite because it involves different procedural and factual circumstances that are not present here. 6
incrimination. However, the United States Supreme Court concluded that the pressure to speak in the hope of improving [the] chance of being granted clemency does not make the interview compelled. Ohio Adult Parole Authority, 523 U.S. at 288. Because parole is only a matter of grace and mercy, a mere possibility to which there is no right, any pressure felt by a prisoner to speak in the hope of improving his chance for parole is not compelled and, therefore, does not implicate the Fifth Amendment right against self-incrimination. Id. In the context of a voluntary parole hearing, a prisoner is free to assert his Fifth Amendment right against self-incrimination and refuse to admit to committing the [crime] for which he was convicted[;] [h]e is not, however, immunized from all adverse consequences, if any, arising from that refusal. Weaver, 688 A.2d at 778; see also Sontag v. Ward, 789 A.2d 778, 779-80 (Pa. Cmwlth. 2001) (addressing whether a requirement that a prisoner admit guilt in order to qualify for a sex-offender program leading to parole, despite pleading no contest, violated the Fifth Amendment privilege, and concluding that the privilege against self-incrimination does not extend to consequences of a noncriminal nature, and does not mean that no adverse consequences can flow from exercising such a right ). Even assuming that the Parole Board drew adverse inferences from Smull s refusal to show remorse or accept responsibility for the offense for which he was convicted, yet for which he maintains his innocence, because parole is merely a matter of grace and mercy, but not a right, [i]t is difficult to see how a voluntary interview could compel [Smull] to speak. Ohio Adult Parole Authority, 523 U.S. at 286. Without compulsion, there can be no violation of the Fifth Amendment right against compelled self-incrimination. Accordingly, Smull s Amended Complaint fails to state a claim on this issue. 7
Smull additionally alleges that the Parole Board violated his substantive due process rights when it denied him parole for his failure to show remorse or accept responsibility for his offense. Essentially, Smull s averments of a substantive due process violation constitute a claim that the Parole Board denied parole for improper reasons. Here, the Parole Board acknowledged that it had interviewed Smull, reviewed his file, and considered all matters required pursuant to law when, in the exercise of its discretion, it denied Smull parole upon the expiration of his minimum sentence. All that is required by the Parole Board in determining whether to grant or deny parole is to consider the factors set forth in Section 6135 of the Prisons and Parole Code, 61 Pa. C.S. 6135, including the nature and circumstances of the offense committed, any recommendations made by the trial judge and prosecuting attorney, the general character and background of the prisoner, the participation of the prisoner in victim impact education programs, the written or personal statement of the victim s family, notes and testimony of the sentencing hearing, as well as the conduct of the person while in prison and his physical, mental, and behavioral condition and history. The Parole Board then determines whether, based on those factors, the individual should be granted parole. In this case, the Parole Board provided Smull with a brief statement of reasons for denial of his parole. (Notice of Parole Board s Decision at 1, Amended Complaint, Ex. 7.) The decision of whether to grant or deny parole rests within the exclusive authority and discretion of the Parole Board, and there is no evidence that the Parole Board failed to follow the proper procedure when determining 8
whether parole was appropriate. Therefore, the Parole Board did not violate the due process clause of the Fourteenth Amendment of the United States Constitution. To the extent that Smull s pleadings could be interpreted as alleging a violation of a liberty interest under the due process clause, we observe that [u]nder 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. Weaver, 688 A.2d at 770. The United States Supreme Court unequivocally concluded that, even in the context of parole revocation, parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply, reasoning that [p]arole arises after the end of the criminal prosecution, including imposition of sentence. Morrissey, 408 U.S. at 480. The General Assembly has granted the [Parole] Board broad discretion in parole matters... and it is for the [Parole] Board alone to determine whether or not the prisoner is sufficiently rehabilitated to serve the remainder of his sentence outside the confines of prison. Weaver, 688 A.2d at 770 (internal citations omitted.) Moreover, constitutional issues arise in the context of a denial of parole only if the applicable parole statute provides a prisoner with the expectation of release. Id. at 773 (emphasis added). However, [n]o such expectation is created by Pennsylvania s parole statute, and therefore, there is no liberty interest affected by the [Parole] Board s decision to deny parole. Id. 9
Accordingly, the Parole Board s PO in the nature of a demurrer is sustained, and the Amended Complaint is dismissed with prejudice. 4 RENÉE COHN JUBELIRER, Judge 4 We need not address the Parole Board s remaining POs raising failures by Smull to conform to (1) Rule 1513(c) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 1513(c), which requires that the Petition for Review be divided into consecutively numbered paragraphs containing a single allegation of fact; and (2) Rule 1022 of the Pennsylvania Rules of Civil Procedure, Pa. R.C.P. No. 1022, which requires that every pleading shall be divided into consecutively numbered paragraphs containing only one material allegation. 10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA James Joseph Smull, Petitioner v. No. 614 M.D. 2011 Pennsylvania Board of Probation and Parole, Respondent O R D E R NOW, November 9, 2012, the Respondent s Preliminary Objection in the nature of a demurrer in the above captioned matter is hereby SUSTAINED, and the Amended Mandamus Petition for Review is DISMISSED WITH PREJUDICE. RENÉE COHN JUBELIRER, Judge