IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jamie Brown, :
Petitioner :
:
v. : No. 312 M.D. 2022
: Submitted: May 12, 2023
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE DUMAS FILED: February 1, 2024
Jamie Brown (Brown) has filed a petition for review purporting to seek
mandamus relief in this Court’s original jurisdiction. Brown contends that the 2020
amendment of the Prisons and Parole Code, Section 6139(a)(3.3),1 constitutes a
violation of the ex post facto clause of the United States and Pennsylvania
Constitutions,2 and he further challenges various procedural aspects of the
Pennsylvania Parole Board’s (the Board)3 February 3, 2022 decision. In response,
the Board has filed preliminary objections, asserting that it is not a proper party, that
1
See Prisons and Parole Code, 61 Pa.C.S. § 6139(a)(3.3), as amended by the Act of
November 25, 2020, P.L. 1219, No. 124 (the Code).
2
U.S. Const. art. I, § 9, cl. 3; Pa. Const. art. I, § 17.
3
Subsequent to the filing of the petition for review, the Pennsylvania Board of Probation
and Parole has been renamed the Pennsylvania Parole Board. 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, as amended, 61 Pa. C.S. §§ 6101, 6111(a).
Brown failed to exhaust statutory remedies, and by demurrer.4 We overrule the
Board’s preliminary objections averring that it is not a proper party and that Brown
failed to exhaust his administrative remedies, and we sustain the objection by
demurrer. Accordingly, we dismiss Counts I and IV from Brown’s petition for
review.
I. BACKGROUND5
In 2001, Brown was convicted of third-degree murder and received a
sentence of 20 to 40 years of incarceration.6 He is incarcerated at the State
Correctional Institution Forest (SCI-Forest) in Marienville, Pennsylvania.7 He has
extensively but unsuccessfully litigated his conviction in both state and federal
courts. According to Brown, he has served his minimum sentence and is eligible for
parole. However, the Board has repeatedly denied Brown’s parole request based on
the nature of the charges, his refusal to accept responsibility for the crime, and his
lack of remorse.8
The Board denied Brown’s application for parole on December 17,
2020. See Notice of Bd. Decision, 12/17/20, at 1. This denial informed him that he
4
On September 29, 2022, this Court overruled the Board’s preliminary objection to
improper service following Brown’s compliance with the service requirements of Pa.R.A.P. 1514.
See Order, 9/29/22.
5
We base the statement of facts on the bare assertions alleged in the petition for review.
See Pet. for Review, 5/27/22. Additionally, Brown attached several documents as exhibits to his
petition. See Foxe v. Pa. Dep’t of Corr., 214 A.3d 308, 310 n.1 (Pa. Cmwlth. 2019) (observing
that courts reviewing preliminary objections may not only consider the facts pleaded in the petition
for review, but also any documents or exhibits attached to it).
6
Although it is unclear from Brown’s pleadings, it appears that his minimum sentence date
was March 17, 2021. See Notice of Bd. Decision, 12/17/20, at 2 (recognizing Brown’s maximum
sentence date as March 17, 2041).
7
Per the mailing address on attached correspondence, Brown is incarcerated at SCI-Forest.
8
Although Brown avers that the Board has denied repeatedly his applications for parole,
he has attached only a single decision of the Board. See Pet. for Rev., ¶ 1; Notice of Bd. Decision.
2
could apply for parole one year after the date of the denial. At some point, Brown
filed a petition for administrative review because the Board informed Brown that the
decision was a parole refusal, and there is no right to request administrative review
of a parole decision. See Bd. Correspondence, 3/2/21.
Brown again applied for parole in January 2022. However, the Board
responded by letter dated February 3, 2022, and informed him that the Board was
3
not required to consider his application until three years from the date of the prior
denial, citing in support 61 Pa.C.S. § 6139(a)(3.3).9, 10
9
Section 6139(a)(2) requires the Board to consider applications for parole. 61 Pa.C.S. §
6139(a)(2). Section 6139(a)(3) provides that the Board need not consider nor dispose of an
application for parole if it has issued a parole decision on the case within the prior year. Id. §
6139(a)(3). On November 25, 2020, the General Assembly added Section 6139(a)(3.3)(i)-(ii),
which provides:
(i) Notwithstanding the provisions of paragraphs (2) and (3), if a parole
decision has been issued by the board within three years of the date of the
current application, the board shall not be required to consider nor dispose
of an application by an inmate or an inmate’s attorney in the case of an
inmate sentenced under any of the following provisions of 18 Pa.C.S.
(relating to crimes and offenses):
Section 2502(c) (relating to murder).
Section 2503 (relating to voluntary manslaughter).
Section 2901(a.1) (relating to kidnapping).
Section 3011(b) (relating to trafficking in individuals).
Section 3012 (relating to involuntary servitude).
Section 3121 (relating to rape).
Section 3122.1(b) (relating to statutory sexual assault).
Section 3123 (relating to involuntary deviate sexual intercourse).
Section 3124.1 (relating to sexual assault).
Section 3124.2(a.1) (relating to institutional sexual assault).
Section 3125 (relating to aggravated indecent assault).
Section 3126(a)(7) (relating to indecent assault).
Section 4302(b) (relating to incest).
(ii) Nothing under this paragraph shall be interpreted as granting a right to
be paroled to any person, and a decision by the board and its designees
relating to a person sentenced to an offense as set forth under this paragraph
may not be considered an adjudication under 2 Pa.C.S. Chs. 5 Subch. A and
7 Subch. A.
Id. § 6139(a)(3.3)(i)-(ii). Subsequently, this section was amended to replace the word “inmate”
with “offender.” See id.
10
It appears that this amendment was in effect when the Board denied Brown’s application
for parole on December 17, 2020, and that the Board erroneously informed Brown that he could
apply for parole again in one year. See Notice of Bd. Decision at 1. This apparent error does not
impact our analysis.
4
On February 23, 2022, Brown filed a timely petition with the Board,
purporting to seek administrative relief.11 It is unclear from the petition for review
or the documents provided whether the Board responded to that petition.
Brown then filed this petition for review, asserting four counts: (1) 61
Pa.C.S. § 6139(a)(3.3) constitutes an ex post facto punishment; (2) the Board mailing
its decision to a third-party address in Florida violated Department of Corrections
policies and deprived him of the right to timely challenge the decision; (3) the
Board’s decision did not contain findings and reasoning for the denial in violation
of “existing laws requiring agencies to place reasons” in writing and that such a
failure prevents an appellate tribunal from making an appropriate determination; and
(4) the Board’s denial unlawfully compelled Brown to continue serving his term,
unlawfully extended his sentence, and deprived him of the enjoyment of parole, in
violation of the Pennsylvania and United States Constitutions. See Pet. for Rev., ¶¶
7-21. The Board filed preliminary objections, which we address seriatim.12
II. DISCUSSION
When reviewing preliminary objections to petitions for review in our
original jurisdiction, we “must treat as true all well-pleaded, material and relevant
facts together with any reasonable inference[s] that can be drawn from those facts.”
Cnty. of Berks v. Pa. Off. of Open Recs., 204 A.3d 534, 539 n.7 (Pa. Cmwlth. 2019)
(citations omitted). We are not required to accept as true “conclusions of law,
unwarranted inferences from facts, expressions of opinion or argumentative
11
Brown asserts that he had 30 days to challenge the Board’s conduct and was prevented
from timely filing, but the documents provided reflect that he filed his petition 20 days after the
decision.
12
Brown’s brief in response to the Board’s objections was due October 31, 2022. See
Order, 12/9/22. On December 9, 2022, this Court issued an order directing Brown to file his brief
on or before December 27, 2022, or we would proceed without his brief. See id. As of the date of
the filing of this opinion, Brown has not filed a brief.
5
allegations.” See id. “[W]here any doubt exists as to whether the preliminary
objections should be sustained, the doubt must be resolved in favor of overruling the
preliminary objections.” Pa. State Lodge, Fraternal Ord. of Police v. Dep’t of
Conservation & Nat. Res., 909 A.2d 413, 416 (Pa. Cmwlth. 2006).
A. Improper Party13
Initially, the Board objects that it is an improper party to this action.
See Prelim. Objs., ¶¶ 8-10. According to the Board, it lacks any interest in
implementing the law, pointing to the statutory language used in the amended
Section 6139, which provides that the Board “shall not be required to consider nor
dispose of an application by an offender” for a specified period. See id.
A “demurrer is a preliminary objection to the legal sufficiency of a
pleading and raises questions of law[.]” Raynor v. D’Annunzio, 243 A.3d 41, 52
(Pa. 2020) (cleaned up). “When ruling on a demurrer, a court must confine its
analysis to the [petition for review].” Torres v. Beard, 997 A.2d 1242, 1245 (Pa.
Cmwlth. 2010). The demurrer “admits every well-pleaded fact in the [petition for
review] and all inferences reasonably deducible therefrom.” Id. “Thus, the court
may determine only whether, on the basis of the [petitioner’s] allegations, he or she
possesses a cause of action recognized at law.” Fraternal Ord. of Police Lodge No.
5 by McNesby v. City of Philadelphia, 267 A.3d 531, 541 (Pa. Cmwlth. 2021). We
sustain a demurrer only when the law undoubtedly precludes recovery; if doubt
13
In support of this preliminary objection, the Board cites Pa.R.Civ.P. 1028(a)(4). This
Court has considered whether the attorney general was an improper party in the context of a
demurrer. See Golden Triangle News, Inc. v. Corbett, 700 A.2d 1056, 1060 (Pa. Cmwlth. 1997).
More recently, this Court sustained a preliminary objection that the Governor was an improper
party to an action under Pa.R.Civ.P. 1028(a)(5). See Pa. Env’t Def. Found. v. Commonwealth,
285 A.3d 702, 709 (Pa. Cmwlth. 2022).
6
exists, we should overrule the demurrer. Bilt-Rite Contractors, Inc. v. The
Architectural Studio, 866 A.2d 270, 274 (Pa. 2005).
The interest in enforcing and defending a statute “belongs to the
government official who implements the law.” Allegheny Sportsmen’s League v.
Ridge, 790 A.2d 350, 355 (Pa. Cmwlth. 2002). In this context, our courts have
interpreted “implements the law” as the party who has “a duty or obligation” to
enforce or defend the challenged statute. See City of Pittsburgh v. Commonwealth,
535 A.2d 680, 683 (Pa. Cmwlth. 1987), aff’d, 559 A.2d 513 (Pa. 1989).
In Allegheny Sportsmen’s League, several petitioners filed a petition for
review seeking declaratory and injunctive relief, alleging that the state was violating
the Pennsylvania Uniform Firearms Act of 199514 by maintaining a handgun sales
database. See Allegheny Sportsmen’s League, 790 A.2d at 351-52. The petition for
review named, as respondents, the Governor of Pennsylvania in his official capacity,
the Commissioner of the Pennsylvania State Police in his official capacity, and the
Pennsylvania State Police. See id. The Commonwealth filed preliminary objections,
asserting that the Governor was not a proper party to the action because, although
he is charged with “the broad enforcement responsibility” to ensure that the laws of
this Commonwealth are “faithfully executed, the interest in enforcing and defending
the act in question belongs to the government official who implements the law.” See
id. at 355. This Court sustained the objection and dismissed the Governor from the
suit, holding that the State Police were charged with administering and enforcing the
Firearms Act. See id. Further, the Court noted that the “executive interest” was
adequately represented by the State Police Commissioner as an authorized delegate.
See id.
14
18 Pa.C.S. §§ 6101-6128.
7
Instantly, the Board is an independent administrative board established
for the purpose of granting and revoking paroles to certain offenders in the
Commonwealth. See 61 Pa.C.S. § 6111(a). The Board consists of nine members
appointed by the Governor, presided over by a Board chairperson. See id. §§ 6111-
6112. The Board is charged, with respect to offenders, with the exclusive power to
(1) “parole and reparole, commit and recommit for violations of parole and to
discharge from parole all persons sentenced by any court at any time to
imprisonment in a State correctional institution”; (2) establish “special conditions of
supervision for paroled offenders”; and (3) “promulgate regulations establishing
general conditions of supervision applicable to every paroled offender.” See id. §
6132(a)(1)-(4).
Although it is correct that Section 6139(a)(3.3) provides that the Board
need not consider an offender’s application for three years following its last parole
decision, if the offender has been convicted of certain enumerated offenses, the
Board retains the exclusive power of enforcement and implementation of parole and
the regulations thereof. See id. § 6132(a)(1)-(4). Thus, the Board is the “government
official” charged with the ultimate responsibility of enforcing and administering the
provisions of the Code relating to parole “as well as defending the act.” See
Allegheny Sportsmen’s League, 790 A.2d at 355. Accordingly, we overrule the
objection as stated. Pa. State Lodge, Fraternal Ord. of Police, 909 A.2d at 416.
B. Failure to Exhaust Statutory Remedies
Next, pursuant to Pa.R.Civ.P. 1028(a)(7), the Board objects that Brown
has failed to exhaust his administrative remedies. See Prelim. Objs., ¶¶ 11-13.
According to the Board, the plain language of the Code provides the Board with six
8
months to dispose of “an application.” See id. (citing 61 Pa.C.S. § 6139(a)(7)).15
The Board suggests that because six months had not elapsed between Brown’s filing
of his petition for administrative relief on February 23, 2022, and his petition for
review to this Court, filed May 27, 2022, Brown has failed to exhaust his
administrative remedies.16 See id. ¶¶ 11-13.
This Court has previously explained that “[t]he doctrine of exhaustion
prohibits prospective parties to administrative agency actions from bypassing that
process and challenging the administrative action directly in the courts.” See
Gardner v. Dep’t of Env’t Res., 658 A.2d 440, 445 (Pa. Cmwlth. 1995). It is “more
efficient” to “allow an agency to proceed uninterrupted until its conclusion so that it
can find facts, apply its expertise and exercise its discretion,” as well as to allow the
agency an opportunity to correct its own mistakes. See id. Thus, the doctrine of
exhaustion promotes agency autonomy. See Merriam v. Phila. Hist. Comm’n, 777
A.2d 1212, 1219 (Pa. Cmwlth. 2001).
Instantly, we reject the Board’s assertion that Brown filed an
application for parole subject to 61 Pa.C.S. § 6139(a)(7). Rather, in his petition for
review, Brown asserts that amendments to Section 6139(a) deprived him of an
opportunity to file applications for parole annually and that this deprivation imposes
unconstitutional ex post facto punishment. See Pet. for Rev., ¶¶ 7-12.
In addition to its errant reliance on Section 6139(a)(7), the Board cites
several cases. See Prelim. Objs., ¶¶ 11-13. Upon review, these cases are inapposite,
as all concern applications for parole rather than petitions seeking some other form
15
Section 6139(a)(7) provides that “[t]he [B]oard shall dispose of an application within six
months of its filing.” See 61 Pa.C.S. § 6139(a)(7). The Board interprets this language to
encompass all applications for relief submitted to the Board. See Prelim. Objs., ¶¶ 11-13.
16
Six months from February 23, 2022, is August 23, 2022.
9
of administrative review. See, e.g., Gillespie v. Pa. Bd. of Prob. & Parole, 505 A.2d
403 (Pa. Cmwlth. 1986) (quashing a petition for review filed in this Court less than
six months after an inmate’s request for a parole interview, which the Board viewed
as an application for parole); Giddings v. Tartler, 567 A.2d 766 (Pa. Cmwlth. 1989)
(denying an inmate’s motion for judgment on the pleadings because his underlying
petition for review was filed in this Court merely one day after his application to the
Board); Marshall v. Jacobs, 575 A.2d 971 (Pa. Cmwlth. 1990) (dismissing a petition
for review because an inmate had filed an application for parole approximately nine
months before his minimum parole date and was, thus, premature).17
The Board has misconstrued Brown’s claim and failed to cite relevant
authority to support its preliminary objection. Section 6139(a)(7) of the Code is not
applicable to Brown’s claim, and the Board has not identified any relevant
administrative process of which Brown has failed to avail himself. Accordingly, we
overrule the objection as stated. Pa. State Lodge, Fraternal Ord. of Police, 909 A.2d
at 416.
C. Demurrer – Failure to State a Claim
Finally, the Board objects that mandamus relief is unavailable to
Brown. See Prelim. Objs., ¶¶ 14-16. We discern two bases for this demurrer. First,
according to the Board, it was not required to consider his application for parole.
See id., ¶¶ 14-15. Because its consideration of Brown’s application was
discretionary, the Board asserts that Brown cannot establish a clear right to relief.
17
The cited cases refer to an outdated version of the Code, Section 22 of the Parole Act,
Act of August 6, 1941, P.L. 861, as amended, formerly 61 P.S. § 331.22, repealed by the Act of
August 11, 2009, P.L. 147. Both the prior version of the Code and the current version of the Code,
however, provide that (1) the Board has the power to grant parole on its own or applications for
parole by an offender or offender’s attorney and (2) the Board shall dispose of “an application”
within six months of its filing. See Section 22 of the Parole Act, formerly 61 P.S. § 331.22
(repealed); 61 Pa.C.S. § 6139.
10
See id. Second, according to the Board, Section 6139(a)(3.3) is not an
unconstitutional ex post facto law. See id., ¶¶ 15-16.
“A proceeding in mandamus is an extraordinary action at common law,
designed to compel performance of a ministerial act or mandatory duty where there
exists a clear legal right in the plaintiff, a corresponding duty in the defendant, and
want of any other adequate and appropriate remedy.” Bronson v. Pa. Bd. of Prob.
& Parole, 421 A.2d 1021 (Pa. 1980); see also Leonardo v. Pa. Bd. of Prob. & Parole
(Pa. Cmwlth., No. 156 M.D. 2021, filed Mar. 17, 2023) (unpublished mem.).18
“Mandamus will not lie in a purely discretionary act.” Coady v. Vaughn, 770 A.2d
287, 290 (Pa. 2001).
1. Mandamus and the Board’s Discretion
The Board has been granted broad discretion in parole matters. Rogers
v. Pa. Bd. of Prob. & Parole, 724 A.2d 319, 322 (Pa. 1999). Because the grant or
denial of parole is discretionary, claims related to decisions of the Board are not
normally suited to review by mandamus. Coady, 770 A.2d at 290. The Pennsylvania
Supreme Court has explained further that “while a court may direct that discretion
be exercised, it may not specify how that discretion is to be exercised nor require the
performance of a particular discretionary act.” Id. (emphasis in original). “Thus,
mandamus will not lie where the substance of the [B]oard’s discretionary action is
the subject of the challenge.” Id.
Regarding the Board’s first basis for this demurrer, we briefly note the
following. The Board has correctly asserted that the grant or denial of parole is a
18
This Court’s memorandum opinions are not binding precedent but may be cited for their
persuasive value. Section 414(a) of the Commonwealth Court’s Internal Operating Procedures,
210 Pa. Code § 69.414(a); see also, e.g., Johnson v. Pa. Bd. of Prob. & Parole, 300 A.3d 525, 528
(Pa. Cmwlth. 2023) (citing several unreported decisions for the settled rule that an appeal from a
revocation order is moot upon the expiration of a parolee’s maximum term).
11
discretionary act and that, accordingly, mandamus cannot compel a grant of parole.
See id. Nevertheless, the Board has misconstrued Brown’s claims. Brown does not
aver that he filed an application for parole or that such application was denied. His
principal averments are that recent amendments to Section 6139(a) have deprived
him of the right to apply for parole, that this deprivation constitutes an ex post facto
violation, and that this violation sounds in mandamus. Pet. for Rev., ¶ 12. Therefore,
we overrule this objection as stated. See Coady, 770 A.2d at 290; Pa. State Lodge,
Fraternal Ord. of Police, 909 A.2d at 416.
2. Ex Post Facto Violations
Our Supreme Court has recognized a limited exception to the general
rule that parole matters are ill-suited to mandamus review. “Where . . . discretionary
actions and criteria are not being contested but rather the actions of the [B]oard taken
pursuant to changed statutory requirements are being challenged, an action for
mandamus remains viable as a means for examining whether statutory requirements
have been altered in a manner that violates the ex post facto clause.”19 Coady, 770
A.2d at 290; see Toland v. Pa. Bd. of Prob. & Parole, 263 A.3d 1220, 1233 (Pa.
Cmwlth. 2021); Leonardo, slip op. at 9-10.
A prohibited ex post facto law “imposes a punishment for an act which
was not punishable at the time it was committed or imposes additional punishment
to that then prescribed.” Cimaszewski v. Pa. Bd. of Prob. & Parole, 868 A.2d 416,
422 (Pa. 2005) (cleaned up); Toland, 263 A.3d at 1233; Leonardo, slip op. at 10.
19
Section 9 of Article I of the United States Constitution provides that “[n]o . . . ex post
facto Law shall be passed.” U.S. Const. art. I, § 9, cl. 3 (emphasis added). Section 17 of article I
of the Pennsylvania Constitution states that “[n]o ex post facto law . . . shall be passed.” Pa. Const.
art. I, § 17 (emphasis added).
12
There are two critical elements: (1) the law must be retrospective, and (2) it must
disadvantage the offender.20 Cimaszewski, 868 A.2d at 423.
The first element is clearly met. Brown was convicted of third-degree
murder in 2001. In November 2020, the General Assembly amended procedural
requirements relevant to the parole of inmates convicted of certain enumerated
offenses, including murder in the third degree. See 61 Pa.C.S. § 6139(a)(3.3). The
Board relied on these amendments when it informed Brown that it was not required
to consider his serial application for parole within three years of a prior disposition.
Thus, because the amendments apply to Brown’s parole eligibility, they are
retrospective. See Cimaszewski, 868 A.2d at 423; see also, e.g., Cal. Dep’t of Corr.
v. Morales, 514 U.S. 499 (1995) (finding 1981 amendments to parole code
retrospective when applied to the respondent, who was convicted of murders in 1971
and 1980 and became eligible for parole in 1990).
For the second element, an inmate must establish that the change in the
law “creates a significant risk of prolonging his incarceration.” Cimaszewski, 868
A.2d at 427. There is no precise definition of what constitutes a sufficient risk of
increased punishment, but “speculative and attenuated possibilities of increasing
punishment . . . do not suffice.” Id. Thus, where a new rule “by its own terms” does
not show a significant risk of increased punishment, an inmate must demonstrate “by
evidence drawn from the rule’s practical implementation, that its retroactive
application would result in a longer period of incarceration than under the earlier
rule.” Id. (cleaned up).
20
The Cimaszewski Court relied on Weaver v. Graham, 450 U.S. 24 (1981). In Weaver,
the United States Supreme Court clarified that “a law need not impair a ‘vested right’ to violate
the ex post facto prohibition.” 450 U.S. at 29.
13
Here, Brown does not plead that he can provide the requisite evidence
that he faces a significant risk of an increase in punishment by application of the
Section 6139(a) amendments. See generally Pet. for Rev. Even viewed in the light
most favorable to Brown, we infer no intent by Brown to plead a fact-intensive
inquiry as envisioned by the Cimaszewski Court. See generally id. Rather, Brown
proceeds from a mistaken premise that the amendments prohibit him from
submitting an application for parole. For example, Brown avers that he “is entitled
to the issuance of mandamus from this Court to compel [the] Board to refrain from
denying him the entitlement to apply for parole review/consideration based on the
recent enactment of [Section] 6139, supra.” Id., ¶ 10. He further admits that he
“does not have any right to being paroled by [the] Board, he does, by being eligible
for the same, have the right to apply for parole.” Id., ¶ 12. Thus, Brown seemingly
views the plain terms of the Section 6139(a) amendments as punitive because those
amendments purportedly impede his right to apply for parole.
Of course, Brown is mistaken. Nothing in the amendments to Section
6139(a) altered, hindered, or otherwise prohibited Brown or any other similarly
situated inmate from applying for parole. Moreover, nothing in these amendments
precludes the Board from considering Brown’s application for parole filed less than
three years after a prior denial. Absent evidence demonstrating that the practical
implementation of Section 6139(a)(3.3) results in a longer period of incarceration,
we conclude that the amendments merely grant the Board greater discretion in
reviewing serial applications for parole.
In support of its demurrer, the Board cites Rauso v. Pennsylvania Board
of Probation and Parole, 762 A.2d 774 (Pa. Cmwlth. 2000). In that case, the
petitioner was serving a 5-to-10-year sentence in state custody, which was to be
14
followed by four years of federal supervision. Rauso, 762 A.2d at 774-75. The
petitioner applied to the Board for parole so he could begin accruing credit toward
his federal sentence, but the Board denied him parole more than once. See id. at 775.
Following one of his applications, the Board responded to the petitioner by letter
explaining that pursuant to former Section 22 of the Code,21 the Board would defer
any consideration of the petitioner’s latest application until one year had elapsed
since its last parole decision. See id.
The petitioner then sought mandamus relief in this Court, asserting that
former Section 22 violated the ex post facto clause. Id. The action was premised
upon the petitioner’s apparent belief that he was entitled to parole as soon as he had
reached his minimum sentence date and that any delay incurred due to the Board’s
reliance on former Section 22 impermissibly increased his punishment. See id. The
Rauso Court summarily rejected his claim, noting that the petitioner “is still serving
his [5-to-10-year] sentence.” Id. Because the Rauso Court did not consider the most
recent amendments to Section 6139(a) and because it offered little substantive
analysis, it provides little persuasive value to this case.
More recently, however, this Court considered a similar petition for
review in Leonardo. In that case, a prisoner was serving a sentence for rape and
involuntary deviate sexual intercourse. See Leonardo, slip op. at 2. After reaching
his minimum sentence, the prisoner twice applied for parole, and the Board denied
his applications. After the second denial, the legislature amended Section 6139(a)
to include subsection (3.3). Following a third application, the Board informed the
21
Former Section 22 of the Act of August 6, 1941, P.L. 861, as amended, formerly 61 P.S.
§ 331.22 (repealed). Although it is unclear from the Rauso Court’s analysis, it appears that former
Section 22 added the one-year deferral period after judgment of sentence was imposed on Rauso.
15
prisoner of the new, three-year deferral period and declined to review his application.
See id. at 2-3.
The prisoner filed a petition for review in mandamus, asserting that
Section 6139(a)(3.3) violated the constitutional prohibition against ex post facto
laws. See id. at 3-5. According to the prisoner, the new deferral period unlawfully
extended his incarceration. See id. at 9. As in Rauso, the Court rejected this claim.
See id. at 9-11. The Leonardo Court observed that, although a prisoner’s minimum
sentence date triggers parole eligibility, his “actual sentence . . . is his maximum
sentence.” Id. at 12 (cleaned up). Thus, in applying Section 6139(a)(3.3), “the
Board did not inflict a new or greater punishment than he was originally given.” Id.
The Leonardo Court further observed that Section 6139(a)(3.3) did not alter the
criteria for evaluating a prisoner’s suitability for parole. See id. at 12-13 (discussing
Morales, 514 U.S. at 507).
Here, Brown has not claimed that Section 6139(a)(3.3) has altered
criteria for securing a reduction in his sentencing range, nor do we discern any
factual allegations that would support such a claim. See generally Pet. for Rev.
Nevertheless, we note that in support of its denial of Brown’s parole in December
2020, the Board considered Brown’s “institutional behavior, including reported
misconducts”; his “risk and needs assessment”; a “negative recommendation made
by the Department of Corrections”; “reports, evaluations and assessments/level of
risk indicat[ing] [his] risk to the community”; his “minimization/denial of the nature
and circumstances of the offense(s) committed”; his “refusal to accept responsibility
for the offense(s) committed”; his “lack of remorse for the offense(s) committed”;
“the negative recommendation made by the trial judge”; and “the negative
recommendation made by the prosecuting attorney.” Notice of Bd. Decision at 1
16
(capitalization removed). Nothing in Section 6139(a)(3.3) alters these
considerations.
Accordingly, because Brown cannot state a claim for mandamus relief
on these grounds, we sustain the preliminary objection. Bilt-Rite Contractors, Inc.,
866 A.2d at 274.
III. CONCLUSION
For the foregoing reasons, we overrule the Board’s preliminary
objections contending that it is an improper party and that Brown failed to exhaust
his statutory remedies. We sustain the preliminary objection by demurrer.
Accordingly, we dismiss Counts I and IV from Brown’s petition for review.22
LORI A. DUMAS, Judge
22
The Board’s preliminary objections did not address Brown’s second and third counts,
namely, that the Board erred by mailing his decision to a third-party address and by failing to
support its decision with reasons in writing. See Pa.R.Civ.P. 1028(b) (requiring all preliminary
objections to be raised at one time); see also Pa.R.Civ.P. 1032 (a party waives all objections which
are not presented by preliminary objection, answer, or reply); see also Pa.R.A.P. 1516(b) (noting
that every pleading filed after an original jurisdiction petition for review shall be filed within 30
days after service of the preceding pleading).
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jamie Brown, :
Petitioner :
:
v. : No. 312 M.D. 2022
:
Pennsylvania Board of Probation :
and Parole, :
Respondent :
ORDER
AND NOW, this 1st day of February, 2024, the Pennsylvania Parole Board’s
(Board) preliminary objections alleging that it is an improper party to this appeal and
that Jamie Brown (Brown) failed to exhaust administrative remedies are
OVERRULED. The Board’s preliminary objection by demurrer is SUSTAINED.
Counts I and IV are DISMISSED from Brown’s petition for review. The Board shall
file an answer to the remaining counts within 30 days of the date of this order.
LORI A. DUMAS, Judge