King v. Commonwealth, Pennsylvania Board of Probation & Parole

Opinion by

Judge Barry,

This is a pro se petition for writ of mandamus which essentially contends that the Pennsylvania Board of Probation and Parole (the Board) on or about November 13, 1985, notified petitioner of a decision denying him parole. Petitioner contends, in his argument, that the reason for this denial is his effort to assist fellow prisoners in their legal problems. In a per curiam order dated February 26, 1986, this Court ordered that the case be treated as a petition for review in the nature of an appeal from a denial of parole addressed to this Courts appellate jurisdiction. The Board has filed a motion to quash contending that, although the Board denied the parole after sua sponte consideration, the petitioner had no right to be considered for parole since he had not filed an application for parole. Since the record does not show any application for parole filed by petitioner, the *394motion to quash must be granted. In the interest of judicial economy in the likely event that petitioner will or has already filed an application for parole, we will address his contention that he is entitled to a review of the action of the Board in refusing his parole.

This Court has held that the Board has discretion to grant or deny parole because parole, being a matter of administrative discretion and determination, is nonjudicial and not generally subject to judicial review under the law of Pennsylvania. Barnhouse v. Pennsylvania Board of Probation and Parole, 89 Pa. Commonwealth Ct. 512, 492 A.2d 1182 (1985). Much broader in its implications is the case of Reider v. Pennsylvania Board of Probation and Parole, 100 Pa. Commonwealth Ct. 333, 514 A.2d 967 (1986). That case held that what the Board decides and why, being wholly a matter of the Boards discretion, is simply not subject to judicial review. Reider cites the case of Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979) for the following proposition:

In Greenholtz, the United States Supreme Court stated that a decision by a parole board as to whether or not a parole should be granted may be made for a variety of reasons, sometimes involving no more than an informed prediction as to what would best serve the safety and welfare of the inmate and the community.

100 Pa. Commonwealth Ct. at 341, 514 A.2d at 971.

Our opinion in Reider did not discuss another aspect of the Greenholtz opinion. A majority of the U.S. Supreme Court concluded that there was no constitutionally protected “conditional liberty” interest recognized by the Supreme Court in Morrissey v. Brewer, 408 U.S. 471 (1972), in connection with parole proceedings. The Court held in Greenholtz:

There is no constitutional or inherent right of a convicted person to be conditionally released be*395fore the expiration of a valid sentence. The natural desire of an individual to be released is indistinguishable from the initial resistance to being confined. But the conviction, with all its procedural safeguards, has extinguished that liberty right: ‘[Gjiven a valid conviction, the criminal defendant has been constitutionally deprived of his liberty.’

442 U.S. at 7. However, the Court pointed out that the Nebraska statute created a protectable expectation of parole since its language stated:

Whenever the Board of Parole considers the release of a committed offender who is eligible for release on parole, it shall order his release unless it is of the opinion that his release should be deferred because . . . (then enumerating several conditions). (Emphasis supplied.)

Neb. Rev. Stat. §83-l,114(2)(a)-(n) (1976). The Supreme Court concluded:

The Nebraska procedure affords an opportunity to be heard, and when parole is denied it informs the inmate in what respects he falls short of qualifying for parole; this affords the process that is due under these circumstances. The Constitution does not require more.

442 U.S. at 16.