IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Allen, :
:
Petitioner :
:
v. : No. 214 M.D. 2021
: Submitted: February 4, 2022
Derek F. Oberlander, :
Superintendent, SCI-Forest, :
and the Pennsylvania Board :
of Probation and Parole, :
:
Respondents :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: August 30, 2022
Before the Court are preliminary objections filed by Derek F.
Oberlander, Superintendent of the State Correctional Institution (SCI)-Forest
(Superintendent) and the Pennsylvania Board of Probation and Parole (Board),1
(together, Respondents), to John Allen’s (Inmate) pro se petition for review in the
1
The Pennsylvania Board of Probation and Parole was renamed the Pennsylvania Parole
Board before this action commenced on July 1, 2021. See Sections 15, 16, and 16.1 of the Act of
December 18, 2019, P.L. 776, No. 115 (effective February 18, 2020); see also Sections 6101 and
6111(a) of the Prisons and Parole Code (Parole Code), as amended, 61 Pa. C.S. §§6101, 6111(a).
nature of a complaint in mandamus.2 In his petition, Inmate avers that Respondents
worked in concert to deny Inmate’s parole, denied him credit for time served, and
failed to credit him with time spent at liberty on parole in violation of his rights under
the United States (U.S.) and Pennsylvania Constitutions. Inmate claims that
Respondents arbitrarily and capriciously denied him parole on four consecutive
occasions in violation of his procedural and substantive due process rights under the
Fourteenth Amendment to the U.S. Constitution,3 and in violation of his right not to
incriminate himself under the Fifth Amendment to the U.S. Constitution.4 See
Petition at 4-6. Inmate also claims that Respondents failed to award him credit for
time served and failed to award him credit for time spent at liberty on parole in
violation of the ex post facto clauses in the U.S. and Pennsylvania Constitutions.5
See Petition at 4, 9. Respondents filed preliminary objections in the nature of a
demurrer to inmate’s petition, and raised the defense of lis pendens. After careful
review, we sustain Respondents’ demurrer, dismiss as moot their defense of lis
pendens, and dismiss Inmate’s petition.
2
By Orders dated July 15, 2021, and August 18, 2021, this Court determined that Inmate’s
petition shall be treated as a petition for review addressed to our original jurisdiction. By Order
dated August 31, 2021, this Court granted Inmate’s motion to treat his petition as timely and to
accept payment of the filing fee as Inmate’s compliance with our orders to do so. Respondents do
not argue that Inmate’s petition was untimely.
3
The Fourteenth Amendment provides, in relevant part: “[N]or shall any State deprive
any person of life, liberty, or property without due process of law.” U.S. Const. amend. XIV, §1.
4
The Fifth Amendment provides, in relevant part: “No person shall . . . be compelled in
any criminal case to be a witness against himself . . . .” U.S. Const. amend. V.
5
Article I, Section 9 of the U.S. Constitution provides that “[n]o . . . ex post facto Law
shall be passed.” U.S. Const. art. I, §9. Article I, Section 17 of the Pennsylvania
Constitution states that “[n]o ex post facto law . . . shall be passed.” Pa. Const. art. I, §17.
2
Inmate avers that Respondents denied him parole in a decision dated
April 5, 2019, where, after an interview with Inmate and review of his file,
Respondents denied parole for multiple reasons including the need to participate in
and complete additional institutional programs, institutional behavior including
misconducts, risk assessment indicating risk to the community, prior unsatisfactory
parole supervision, the existence of state detainers, Inmate’s “minimization/denial
of the nature and circumstances of the offenses committed,” and Inmate’s “lack of
remorse for the offense(s) committed.” Petition, Exhibit A at 3-4.6
After interview and file review, Respondents denied Inmate’s parole
again in a decision dated January 22, 2020, for risk level to the community, prior
unsatisfactory parole supervision history, and “other factors deemed pertinent in
determining that [Inmate] should not be paroled: [Inmate’s] version of events
leading to [his] new conviction is not credible.” Petition, Exhibit A at 5.
After interview and file review, Respondents again denied Inmate’s
parole in a decision dated April 29, 2021, for institutional behavior, including
reported misconducts, prior unsatisfactory parole supervision history, risk level to
the community, Inmate’s “minimization/denial of the nature and circumstances of
the offenses(s) committed,” his “refusal to accept responsibility for the offense(s)
committed,” his “lack of remorse for the offense(s) committed,” and other factors
deemed pertinent regarding Inmate’s “apparent failure to benefit from prior
incarceration, programming[,] or community supervision.” Petition, Exhibit A at 6.
At the next review, the Board would consider whether Inmate maintained a favorable
recommendation from the Department of Corrections, maintained a clean conduct
record, had a detailed reentry plan including employment, and the Board
6
For ease of reference, we insert page numbers in Inmate’s Exhibit A, as it was not
paginated.
3
recommended educational/vocational programming. Id. at 7. Therefore, the record
reveals that Inmate was denied parole three times, and not four times, as Inmate
alleged. Id. at 3-7.
As to the parole denials dated April 5, 2019, January 22, 2020, and
April 29, 2021, Inmate avers that the Board’s decisions violated his procedural due
process rights under the Fourteenth Amendment, when Respondents “have the
ultimate authority” over parole denials, and there is “no known review committee to
vet their decisions.” Petition at 2. Inmate claims Respondents abused their
discretion when the parole denials are “based on facts not in evidence, and when
[Inmate] was never charged with, nor convicted of[,] the reason they are now trying
to employ” to deny Inmate’s parole. Id. Inmate also avers that Respondents’ parole
denials violated his substantive due process rights under the Fourteenth Amendment
when they denied Inmate’s “meaningful access to parole” in an “arbitrary and
capricious manner” in actions that are “conscience shocking,” again, based on “facts
not in evidence.” Id. Inmate further avers that Respondents’ parole denials violated
his right to be free from self-incrimination under the Fifth Amendment, again,
because Inmate claims that he “can[]not accept responsibility for an event that never
occurred, nor can an admittance occur for a fact that does not exist.” Id. at 6.
Inmate’s claims that Respondents’ parole denials violated his
constitutional rights all hinge on Inmate’s failure to admit that he was charged with
or convicted of a weapons violation as part of his conviction for terroristic threats.
See Petition at 3, 4, 5, and 6.
Also attached to Inmate’s petition is the Board’s decision with a mailing
date of August 15, 2018, that recommitted Inmate as a convicted parole violator
(CPV), to serve twelve months of backtime for his conviction for terroristic threats,
4
and denied Inmate credit for time spent at liberty on parole because his new
conviction “involved possession of a weapon.” Petition, Exhibit A at 1-2. As to
Inmate’s recommitment, Inmate does not contest the recommitment itself, but he
avers that Respondents’ failure to credit him with time spent at liberty on parole and
to credit his time served to his original sentence violated the ex post facto clauses of
the U.S. and Pennsylvania Constitutions, by punishing him for an offense he did not
commit. See Petition at 4, 7, 8, and 9. Inmate’s claims that Respondents’ failure to
properly grant him time credits in their recommitment decision also hinge on
Inmate’s failure to admit that he was charged with or convicted of a weapons
violation, or that his “[n]ew [c]onviction [for terroristic threats] involved
[p]ossession of a [w]eapon.” Id. at 4, 5, and 9.
Respondents filed preliminary objections in the nature of a demurrer to
Inmate’s petition, arguing that Inmate failed to aver sufficient facts to support his
claim that his constitutional rights were violated when he was denied parole three
times, because Inmate does not have a liberty interest in receiving parole, citing in
support Weaver v. Pennsylvania Board of Probation and Parole, 688 A.2d 766, 770
(Pa. Cmwlth. 1997). Respondents also demur to Inmate’s claim that the Board’s
failure to properly award him time credit violated the ex post facto clauses of the
U.S. and Pennsylvania Constitutions, arguing that Inmate failed to aver sufficient
facts in support of this claim. Respondents also assert the defense of lis pendens,
arguing that Inmate’s averments that the Board failed to award him proper credit
when it recommitted him should be dismissed because Inmate’s appeal of the
Board’s August 15, 2018 decision was pending in a separate appeal before this
5
Court, docketed as John Allen v. Pennsylvania Parole Board (Pa. Cmwlth., No. 573
C.D. 2020, filed February 15, 2022) (Allen).7
We first address Respondents’ lis pendens claim, where Respondents
argue that under Pa.R.Civ.P. 1028(a)(6), Inmate’s petition should be dismissed
based on the “pendency of a prior action” based on Inmate’s then-pending appeal of
his recommitment in Allen. To prevail on this claim, Respondents must show that,
in each case, the same parties are involved, the same rights asserted, and the same
relief sought. Commonwealth ex rel. Lindsley v. Robinson, 372 A.2d 1258, 1260
(Pa. Cmwlth. 1977).
In Allen, Inmate, represented by counsel, sought review of the Board’s
denial of his request for administrative review of its August 15, 2018 decision that
recommitted Inmate to an SCI as a CPV, declined to award him credit for the time
that he spent at liberty on parole because his new conviction involved the possession
of a weapon, and applied the time he spent detained on the new charges to his new
sentence and not to his original sentence. Allen, slip op. at 1. The relevant facts
from Allen are as follows:
On February 10, 2015, Parolee pleaded guilty, in the
Luzerne County Court of Common Pleas, to two separate
7
See Pa. R.A.P. 126(b) (“As used in this rule, ‘non-precedential decision’ refers to . . . an
unreported memorandum opinion of the Commonwealth Court filed after January 15, 2008. []
Non-precedential decisions . . . may be cited for their persuasive value.”). It is appropriate for this
Court to take judicial notice of documents that are filed and entered in our docket. See, e.g.,
Pa.R.E. 201(b)(2) (permitting courts to take judicial notice of facts that may be “determined from
sources whose accuracy cannot reasonably be questioned”); Moss v. Pennsylvania Board of
Probation and Parole, 194 A.3d 1130, 1137 n.11 (Pa. Cmwlth. 2018) (taking judicial notice of
docket entries that were not part of the original record); Miller v. Unemployment Compensation
Board of Review, 131 A.3d 110, 115 (Pa. Cmwlth. 2015) (taking judicial notice of the entries on a
claimant’s criminal docket and the records contained therein). The Court’s analysis and holding
in Allen are undoubtedly persuasive here, where Inmate is attempting to challenge his
recommitment through a mandamus action.
6
charges of drug possession with intent to manufacture,
sell, or deliver, and received a total sentence of two to four
years in an SCI. Certified Record (C.R.) at 1-2. At that
time, his maximum sentence date was December 21, 2018.
Id. at 2. On December 22, 2016, he was released on
parole. C.R. at 7.
On August 26, 2017, a Police Criminal Complaint
(Criminal Complaint) was filed in Carbon County,
charging Parolee with aggravated assault, terroristic
threats, simple assault (two counts), recklessly
endangering another person, and harassment. C.R. at 11-
14. The affidavit of probable cause alleged that on August
23, 2017, Parolee entered a residence, produced a firearm,
and pointed it at the victim, stating that he was going to
kill her. Id. at 16-17. The victim jumped from a second-
story bathroom window to escape and suffered multiple
injuries. A warrant was issued for Parolee’s arrest on
August 26, 2017. Id. at 38.
On August 29, 2017, Parolee was arrested by the
Pennsylvania State Police (PSP) and incarcerated in the
Carbon County Prison. C.R. at 22. Monetary bail was set
at $100,000 on August 30, 2017, which Parolee did not
post. Id. at 22, 65. Also on August 29, 2017, the Board
issued a detainer warrant. Id. at 18. Parolee waived his
right to counsel and a detainer hearing. Id. at 21. The
Board issued a decision detaining Parolee pending
disposition of the new criminal charges. Id. at 30.
On March 19, 2018, Parolee entered a guilty plea to
the charge of terroristic threats as provided in Section
2706(a)(1) of the Crimes Code, 18 Pa. C.S. §2706(a)(1),
and was sentenced the same day by the Carbon County
Court of Common Pleas (trial court) to a term of one to
two years in an SCI, plus 50 hours of community service.
Id. at 33, 66. The remaining charges were dismissed. Id.
at 66.
On April 13, 2018, Parolee was returned to the
Board’s custody, and, on May 9, 2018, he waived his right
to counsel and a revocation hearing, and admitted that he
pleaded guilty to the charge of terroristic threats with
7
intent to terrorize another, which is graded as a
misdemeanor of the first degree. C.R. at 35, 51.[] By
decision mailed on August 15, 2018, the Board
recommitted[] Parolee to serve 12 months’ backtime for
the offense of terroristic threats, and declined to award
credit for the time he spent at liberty on parole because the
“new conviction involved possession of a weapon.” Id. at
75-76. His maximum sentence date was recalculated as
June 3, 2020. Id. at 75.
Allen, slip op. at 2-3 (footnotes omitted).
In Allen our Court rejected Inmate’s assertion that the Board denied him
credit for the time he spent at liberty on parole based on his conviction for an offense
that requires the use of a firearm as an element of the offense.
Rather, the Board’s stated reason for denying such credit
was the use of a weapon in Parolee’s commission of the
terroristic threats offense of which he was admittedly
convicted.[] As outlined above, the Board’s reasoning for
the exercise of its discretion demonstrates that it
considered Parolee’s individual circumstances with
respect to the commission of this crime, and it is amply
supported by the Certified Record of this case.
Allen, slip op. at 10 (footnote omitted). We also rejected Inmate’s assertion that the
time he spent in pre-trial detention until he was sentenced on the new charges should
be credited to his original sentence instead of to his new sentence. During the
relevant time period, Inmate was detained on the Board’s warrant, and he did not
post bail on the new charges. Allen, slip op. at 13. We analyzed Section 6138(a)(5)
of the Prisons and Parole Code, 61 Pa. C.S. §6138(a)(5), and Gaito v. Pennsylvania
Board of Probation and Parole, 563 A.2d 545 (Pa. Cmwlth. 1989), and concluded
that the time was properly credited to Inmate’s new sentence. Allen, slip op. at 14.
Allen was filed on February 15, 2022, and Inmate did not appeal that decision.
8
Here, Respondents’ defense of lis pendens must fail because the prior
action, Allen, is no longer pending, rendering this defense moot. However, we
sustain Respondents’ demurrer on this claim, because Inmate failed to aver sufficient
facts to support his argument that the Board’s denial of time credit violates the ex
post facto clauses of the U.S. or Pennsylvania Constitutions. See Petition at 9. In
order for a law to violate the ex post facto prohibition, “the law must retrospectively
alter the definition of criminal conduct or retrospectively increase the penalty by
which a crime is punishable.” Frederick v. Department of Transportation, Bureau
of Driver Licensing, 802 A.2d 701, 704 (Pa. Cmwlth. 2002). The ex post facto
prohibition “applies only to statutes which involve the imposition of penal
sanctions.” Id. Inmate did not cite to or argue that a statute retrospectively altered
the definition of his criminal conduct or penal sanctions being applied to him. See
Petition at 9. Inmate simply disagrees with the Board’s decision to deny him credit
for time spent at liberty on parole, which our decision in Allen already addressed.
We next turn to Inmate’s mandamus action regarding his parole denials
and Respondents’ preliminary objections. Through his mandamus petition, Inmate
asks the Court to take action and rectify the Board’s parole denials and to order his
release. See Petition at 11. Mandamus is “an extraordinary writ designed to compel
performance of a ministerial act or mandatory duty where there exists a clear legal
right in the petitioner, a corresponding duty in the respondent, and want of any other
adequate and appropriate remedy.” Wilson v. Board of Probation and Parole, 942
A.2d 270, 272 (Pa. Cmwlth.), appeal dismissed as moot 963 A.2d 990 (Pa. 2008).
Mandamus “is not available to establish legal rights, but is appropriate only to
enforce rights that have been established.” Id. In evaluating preliminary objections,
“we must consider as true all well-pleaded material facts set forth in the petition and
9
all reasonable inferences that may be drawn from these facts.” Id. Preliminary
objections will be sustained “only where it is clear and free from doubt that the facts
pleaded are legally insufficient to establish a right to relief.” Id. We need not accept
as true “conclusions of law, unwarranted inferences from facts, argumentative
allegations, or expressions of opinion.” Id.
Under the applicable standards, Inmate’s procedural due process claim
under the Fourteenth Amendment to the U.S. Constitution must fail, because Inmate
has no constitutionally protected liberty interest in receiving parole.
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. Because it is a favor, a prisoner has
neither an absolute right to parole nor a liberty interest in
receiving parole. In other words, in Pennsylvania, a
prisoner has no constitutionally protected interest in being
released from confinement prior to the expiration of his or
her maximum term. 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.
Weaver, 688 A.2d at 770 (internal citations omitted). Further, after careful review
of the averments in Inmate’s petition, we discern no evidence that Respondents
failed to provide him with notice and opportunity to be heard in his parole denials.
See Inmate’s Petition at 2, 6. In each decision to deny Inmate’s parole, the Board
interviewed Inmate, reviewed his file, and considered all matters required by the
Board before reaching its decision. See Petition, Exhibit A at 3, 5, and 6. Inmate
argues that Respondents acted arbitrarily when they denied his parole because he
10
failed to admit to a weapons offense for which he was never charged or convicted.
This argument is not supported by the Board’s parole decisions, which do not list
Inmate’s failure to admit to a weapons offense as a reason for denial. Id. The Board,
in its discretion, determined that Inmate’s “version of events leading to [his] new
conviction is not credible,” he “refuses to accept responsibility for the offense(s)
committed,” and he continues to display a “lack of remorse” for the offense
committed. Id. Although Inmate may disagree with the Board’s reasons for denying
him parole, he failed to aver sufficient facts to establish that his procedural due
process rights under the Fourteenth Amendment were violated, and we sustain
Respondent’s demurrer on this claim.
Similarly, we reject Inmate’s claim that Respondents’ parole denials
violated his substantive due process liberty interest under the Fourteenth
Amendment. Inmate has no liberty interest in parole. Weaver, 688 A.2d at 770.
The due process clause “contains a substantive component that bars certain arbitrary,
wrongful government actions ‘regardless of the fairness of the procedures used to
implement them.’” Leamer v. Fauver, 288 F.3d 532, 546 (3d Cir. 2002) (citation
omitted). In a substantive due process analysis, “we must ask whether the officials
have been deliberately indifferent to a liberty interest and deprived the plaintiff of
that interest in such a way that the ‘behavior of the governmental officer is so
egregious, so outrageous that it may fairly be said to shock the contemporary
conscience.’” Id. at 546-47 (citations omitted). After careful review of the
averments in Inmate’s petition, we discern no evidence that Respondents’ decisions
to deny him parole were egregious, outrageous, or that they shock the conscience of
the Court. Although Inmate argues that because Respondents relied on a weapons
offense for which he was never charged or convicted, they must have acted
11
arbitrarily or vindictively, Inmate fails to aver any facts to support this claim. See
Petition at 8, Petition, Exhibit A at 3, 5, and 6. When ruling on preliminary
objections, we need not accept as true “conclusions of law, unwarranted inferences
from facts, argumentative allegations, or expressions of opinion.” Wilson, 942 A.2d
at 272. Therefore, we sustain Respondents’ demurrer on this claim.
Finally, we turn to Inmate’s claim that Respondents denied his parole
in violation of his Fifth Amendment right to be free from self-incrimination. Inmate
argues that his parole should not have been denied because he failed to admit to a
weapons offense for which he was not charged or convicted. Petition at 3. In
Weaver, 688 A.2d at 769, this Court considered an inmate’s Fifth Amendment right
to be free from self-incrimination, when he was denied parole for failure to
participate in a sex offender treatment program that required him to admit to
committing the rape for which he was convicted. We dismissed the inmate’s
mandamus action and held that the Board’s refusal to grant parole, “as evident solely
in its decision,” was within the Board’s discretion, and not a mandatory duty or a
ministerial act. Id. at 777, 779. “Mandamus cannot be used to say that an agency
considered improper factors, that its findings of fact were wrong, or that the reasons
set forth in its decision are a pretense.” Id. at 777.
In Wilson, we considered an inmate’s Fifth Amendment right to be free
from self-incrimination when he was denied parole because he refused to participate
in a sex offender treatment program when he was never convicted of the offense of
corruption of minors. Wilson, 942 A.2d at 272. We explained that the Fifth
Amendment right against self-incrimination, which prohibits the government from
compelling a person to give self-incriminating testimony in a criminal case “‘does
not terminate at the jailhouse door.’” Id. at 273 (quoting McKune v. Lile, 536 U.S.
12
24, 36 (2002)). We summarized the U.S. Supreme Court’s holding in McKune as
follows:
In determining whether the Kansas Department of
Corrections’ sexual abuse treatment program violated a
convicted sex offender’s constitutional privilege against
self-incrimination, the [U.S.] Supreme Court concluded
that a prison rehabilitation program that bears a rational
relation to a legitimate penological objective does not
violate the privilege against self-incrimination if the
adverse consequences for not participating are related to
the program’s objectives and do not constitute an atypical
and significant hardship in relation to the ordinary
incidents of prison life.
Wilson, 942 A.2d at 273. We therefore concluded that the inmate’s mandamus
petition should be dismissed because he failed to state a claim. Id. We found that
the sex offender program furthered a legitimate penological objective of
rehabilitating those whose crimes include a sexual component. Id. We further
concluded that the adverse consequence of denial of parole does not constitute “an
atypical and significant hardship in relation to the ordinary incidents of prison life.”
Id. The inmate’s choice to remain silent gives no rise to a Fifth Amendment claim,
as the government “‘need not make the exercise of the Fifth Amendment privilege
cost free.’” Id. (quoting McKune, 536 U.S. at 41).
Here, Respondents’ denials of Inmate’s parole do not require him to
admit that he was charged with or convicted of a weapons offense in violation of his
Fifth Amendment right. Although Inmate disagrees with the reasons for his parole
denials, “[m]andamus cannot be used to say that an agency considered improper
factors, that its findings of fact were wrong, or that the reasons set forth in its
decision are a pretense.” Weaver, 688 A.2d at 777. Respondents’ denials of
13
Inmate’s parole were based on his refusal to express remorse for his crime, failure
to accept responsibility for his crime, and for his minimization of the circumstances
of his crime, which are components designed to further the legitimate penological
objective of Inmate’s rehabilitation, and which do not present “an atypical and
significant hardship in relation to the ordinary incidents of prison life.” Wilson, 942
A.2d at 273; see Petition, Exhibit A at 3, 5, and 6. Inmate makes no averments that
these grounds for parole denial are an atypical hardship. In fact, Inmate avers these
parole denial grounds are typical, “boiler [p]late reasons.” See Petition at 6.
Therefore, we sustain Respondents’ demurrer on this claim.
Accordingly, we sustain Respondents’ preliminary objection in the
nature of a demurrer to Inmate’s constitutional claims, we dismiss as moot
Respondents’ defense of lis pendens, and dismiss Inmate’s mandamus petition.
MICHAEL H. WOJCIK, Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Allen, :
:
Petitioner :
:
v. : No. 214 M.D. 2021
:
Derek F. Oberlander, :
Superintendent, SCI-Forest, :
and the Pennsylvania Board :
of Probation and Parole, :
:
Respondents :
ORDER
AND NOW, this 30th day of August, 2022, the preliminary objection in
the nature of a demurrer of Derek F. Oberlander, Superintendent, State Correctional
Institution-Forest, and Pennsylvania Board of Probation and Parole is SUSTAINED,
the defense of lis pendens is DISMISSED AS MOOT, and John Allen’s Petition for
Review in the nature of a complaint for mandamus is DISMISSED.
__________________________________
MICHAEL H. WOJCIK, Judge