IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Warren Evans, :
Petitioner :
:
v. : No. 398 M.D. 2020
: Submitted: July 29, 2022
Pa. Board of Probation and Parole, :
Scott A. Woolf, Acting Board :
Secretary for Commonwealth of :
Pennsylvania, :
Respondents :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE FILED: September 29, 2022
The Pennsylvania Board of Probation and Parole (Parole Board)1 has filed a
preliminary objection (PO) in the nature of a demurrer to Warren Evans’s (Evans)
pro se petition for review (Petition) seeking mandamus relief. Evans asserts the
Parole Board improperly declared him ineligible for parole for failure to participate
in sex offender treatment as required by 42 Pa. C.S. § 9718.1. Evans argues that
recent case law has deemed 42 Pa. C.S. § 9718 unconstitutional and therefore he is
1
The Pennsylvania Board of Probation and Parole was renamed the
Pennsylvania Parole Board before this action commenced on June 26, 2020. 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. §§ 6191, 6111(a).
not required to participate in sex offender treatment in order to be considered eligible
for parole. Concluding that Evans’s Petition fails to state a claim in mandamus, we
sustain the Parole Board’s PO and dismiss Evans’s Petition.
Evans is currently in Department of Corrections (DOC) custody as an inmate
at the State Correctional Institution at Rockview (SCI Rockview) serving a sentence
for his 2013 convictions for involuntary deviate sexual intercourse (IDSI) with a
child,2 endangering the welfare of a child,3 and corruption of minors.4 Petition ¶ 5.
In a decision recorded on April 19, 2020 (Parole Decision), the Parole Board
deemed Evans ineligible for parole. The Parole Board indicated that DOC reported
that Evans had “not attended and participated in a [DOC] program of counseling or
therapy designed for incarcerated sex offenders as required by 42 Pa. C.S.[] [§]
9718.1[(a)].” Petition, Ex. B. According to the Parole Board, Evans’s convictions
require participation in sex offender treatment before Evans can be considered for
parole. Id. The Parole Board’s decision advised Evans that he “will not be
interviewed by the Parole Board for parole/reparole until notification is provided by
[DOC] that [he has] participated in a [DOC] sex offender treatment program.” Id.
Evans subsequently filed his Petition with this Court and asserts that the
Parole Board unlawfully relied on Section 9718 in its decision to deny him
consideration for parole. Specifically, Evans asserts that Section 9718 is
“unconstitutional[] and cannot be used to either deny [Evans] eligibility for parole,
nor force him to participate in a [DOC] Sex Offender Program for treatment that’s
been created, designed, established and implemented from the unconstitutional
2
18 Pa. C.S. § 3123(b).
3
18 Pa. C.S. § 4304.
4
18 Pa. C.S. § 6301.
2
statute.” Petition ¶ 9. Throughout his Petition, Evans argues that based on recent
case law, he is “no longer designated as a sexually violent predator (SVP)” and is,
therefore, not subject to “any Violent Prevention Program which [is inapplicable]
and unconstitutional.”5 Petition ¶ 10. Further, Evans, relying on Commonwealth v.
Wolfe, 140 A.3d 651 (Pa. 2016), and Alleyne v. United States, 570 U.S. 99 (2013),
argues that the mandatory minimum sentencing pursuant to Section 9718 “is
unconstitutional on its face, non-severable, and void, and yet the Parole Board
decision rests upon such.” Petition ¶ 13. Based on these arguments, Evans seeks a
writ of mandamus from this Court (1) directing the Parole Board to rescind its April
19, 2020 decision and (2) ordering that the Parole Board grant Evans’s parole.
Petition ¶ 14.
In response, the Parole Board argues that Evans’s Petition does not state a
claim in mandamus because he has failed to demonstrate that he is not required to
participate in sex offender treatment, he has failed to show he has a right to be
considered eligible for parole, and he has failed to show that the Parole Board has a
duty to consider him eligible for parole under his circumstances. Parole Board’s Br.
at 8.
Mandamus is an extraordinary remedy used to compel a government agency
to act where a petitioner can show (1) a clear right to relief, (2) a corresponding duty
on the government agency to act, and (3) a lack of an alternative legal remedy.
Humphrey v. Dep’t of Corr., 939 A.2d 987, 991 (Pa. Cmwlth. 2007) (citing McCray
v. Dep’t of Corr., 872 A.2d 1127, 1131 (Pa. 2005)). Mandamus cannot be used to
5
In his Petition, Evans outlines case law which impacted the Sexual Offender Registration and
Notification Act (SORNA), 42 Pa. C.S. §§ 9799.10 – 9799.75 and his arguments regarding the
effect of such case law on his designation as an SVP and registration requirements. Because those
issues are not raised in this Petition, we do not address Evans’s SVP designation or SORNA
registration requirements.
3
direct the exercise of discretion of a government agency in a particular way. Clark
v. Beard, 918 A.2d 155, 159 (Pa. Cmwlth. 2007). With respect to parole decisions,
our Supreme Court has held that a prisoner may be entitled to pursue allegations of
constitutional violations against the Parole Board through a writ of mandamus.
Rogers v. Pa. Bd. of Prob. & Parole, 724 A.2d 319 (Pa. 1999). Moreover, this Court
has indicated that mandamus is available to compel the Parole Board to correct a
mistake in applying the law. Reider v. Pa. Bd. of Prob. & Parole, 514 A.2d 967 (Pa.
Cmwlth. 1986). We note that “[m]andamus will lie against the [Parole Board] only
if it has not followed the law or proper procedures in ruling on an application for
parole.” Burkett v. Frank, 841 A.2d 646, 649 (Pa. Cmwlth. 2004) (citation omitted).
In considering a preliminary objection in the nature of a demurrer, we “must
consider as true all well-pled material facts set forth in the petition and all reasonable
inferences that may be drawn from those facts.” Richardson v. Beard, 942 A.2d
911, 913 (Pa. Cmwlth. 2008). We “need not accept as true conclusions of law,
unwarranted inferences from facts, argumentative allegations, or expressions of
opinion.” Id. Where it is “clear and free from doubt” that facts pleaded are legally
insufficient to establish a right to relief, we will sustain a preliminary objection. Id.
We must first consider whether Evans’s Petition establishes that he has a clear
right to the relief he seeks. Section 9718.1 of the Sentencing Code requires that any
person convicted of certain sexual offenses involving minor victims, including any
offense enumerated in Chapter 31 if the offense involved a minor under 18 years of
age, who is sentenced to a period of incarceration in a state correctional institution,
be required to participate in a DOC program of counseling or therapy designed for
incarcerated sex offenders. 42 Pa. C.S. § 9718.1. Additionally, under Section
9718.1(b), an inmate required to participate in sex offender treatment is not eligible
4
for parole unless the inmate “has: (i) served the minimum term of imprisonment; (ii)
participated in [the sex offender treatment program]; and (iii) agreed to comply with
any special conditions of parole imposed for therapy or counseling for sex
offenders[.]” 42 Pa. C.S. § 9718.1(b).
Here, Section 9718.1 applies to Evans. Evans was convicted of IDSI with a
child at 18 Pa. C.S. § 3123(b). Pursuant to 18 Pa. C.S. § 3123(b), a person commits
IDSI with a child when the person engages in sexual intercourse with a complainant
who is less than 13 years of age. There is no dispute that IDSI with a child is a
Chapter 31 violation and an element of his conviction includes that his victim was a
child under the age of 13. Therefore, the Parole Board correctly concluded that
Evans is required to participate in the sex offender treatment program, and he is not
eligible for parole until he has participated in the program.
Evans’s reliance on the Alleyne and Wolfe decisions for his assertion that he
is not required to participate in the sex offender treatment program is misplaced. In
Alleyne, 570 U.S. at 103, the United States Supreme Court held that any fact that
increases a penalty for a crime must be treated as an element of the crime and
submitted to a jury to be found beyond a reasonable doubt, rather than to a judge at
sentencing. In Wolfe, the Pennsylvania Supreme Court considered the mandatory
sentencing scheme set forth in Section 9718 of the Sentencing Code, which set forth
mandatory sentences for criminal offenses committed against infant persons.
Consistent with the Alleyne decision, the Court held that Section 9718 “plainly and
explicitly” required judicial fact finding and was “irremediably unconstitutional on
its face, non-severable, and void.” Wolfe, 140 A.3d at 663.
Contrary to Evans’s arguments, neither the Alleyne nor the Wolfe decisions
implicate Section 9718.1 and that section remains constitutional. Section 9718.1
5
does not set forth any mandatory minimum sentencing scheme nor does it purport to
increase a penalty for a crime by relying on a sentencing judge’s factual findings
rather than facts proven beyond a reasonable doubt. The Parole Board properly
relied on Section 9718.1 of the Sentencing Code in denying Evans’s parole
eligibility.6
Therefore, Evans’s Petition fails to plead facts sufficient to establish a right to
relief where the Parole Board, in compliance with Section 9718.1 of the Sentencing
Code, is requiring that he participate in a sex offender treatment program before he
can be considered eligible for parole. Accordingly, the Parole Board’s PO is
sustained, and Evans’s Petition is dismissed.
______________________________
STACY WALLACE, Judge
6
Insofar as Evans argues that Alleyne and Wolfe, or any other case law, impacted his SVP status
and abolished his requirement to participate in the sex offender treatment program, we need not
address this issue because the Parole Board did not base its decision on the portion of Section
9718.1 that addresses an SVP’s requirement to participate in a sex offender treatment program.
Evans does not dispute that he was convicted of IDSI with a child in 2013, see Petition ¶ 5, and
this conviction, regardless of SVP status, requires that he participate in sex offender treatment
before he can be considered eligible for parole. See 42 Pa. C.S. § 9718.1.
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Warren Evans, :
Petitioner :
:
v. : No. 398 M.D. 2020
:
Pa. Board of Probation and Parole, :
Scott A. Woolf, Acting Board :
Secretary for Commonwealth of :
Pennsylvania, :
Respondents :
ORDER
AND NOW, this 29th day of September, 2022, the Pennsylvania Board
of Probation and Parole’s Preliminary Objection is SUSTAINED and Warren
Evans’s Petition is DISMISSED.
______________________________
STACY WALLACE, Judge