Katonka v. Pa. Parole Bd.

Paul Frank Katonka, Petitioner v. Pennsylvania Parole Board, Respondent

No. 707 C.D. 2021

Commonwealth Court of Pennsylvania

December 29, 2022

OPINION NOT REPORTED

Submitted: July 1, 2022

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge HONORABLE ANNE E. COVEY, Judge HONORABLE LORI A. DUMAS Judge

MEMORANDUM OPINION

LORI A. DUMAS, Judge

Paul Frank Katonka (Katonka) petitions for review of the Pennsylvania Parole Board's (Board) decision, mailed May 24, 2021, denying his request for administrative relief. Victoria H. Vidt, Esq. (Counsel), Katonka's court-appointed counsel, has filed an application to withdraw because the appeal lacks merit. We grant Counsel's application to withdraw and affirm the Board's decision.

I. BACKGROUND

On November 26, 2012, Katonka pleaded guilty to sixteen counts arising from the sexual abuse of his stepdaughter. The trial court sentenced Katonka to an aggregate term of 8 to 16 years of incarceration, followed by 19 years of probation. Additionally, the trial court determined that Katonka was a Tier III offender under the Sexual Offender Registration and Notification Act (SORNA).^[1]Katonka did not file a direct appeal.^[2] Upon his parole, Katonka agreed to certain conditions imposed on sexual offenders, including submission to polygraph examinations. See Standard Special Conditions for Sex Offenders, 3/6/18, at 1. However, Katonka was unsuccessfully discharged from his sexual offender treatment program at FAACT after, inter alia, failing a polygraph examination. See FACCT Discharge Summ., 6/9/20, at 1.^[3] Shortly thereafter, a warrant was issued for Katonka's arrest for violation of his parole, and he was taken into custody. See Warrant, 6/11/20, at 1.

The Board notified Katonka of his technical violation as well as his rights to a hearing and counsel. See Notice of Charges and Hearing, 7/7/20, at 1; Offender Rights and Bd. Hr'gs, 7/7/20, at 1. Katonka signed a document waiving those rights and admitting to the violation. See Waiver of Violation Hr'g & Counsel/Admission Form (Waiver), 7/7/20, at 1. Thereafter, the Board recommitted Katonka as a technical parole violator due to his failure to successfully complete sex offender treatment. See Notice of Bd. Decision, 7/10/22, at 1.

Katonka filed administrative remedies forms on August 19, August 26, and September 4, 2020. By order dated April 5, 2021 and mailed May 24, 2021, the Board denied Katonka's requests for administrative relief. Katonka pro se and timely filed a petition for review with this Court. The Court appointed Counsel to represent Katonka in this appeal, but Counsel has filed an application to withdraw and an Anders^[4] Brief.

II. TURNER/FINLEY REQUIREMENTS

Accordingly, we first determine whether Counsel's application to withdraw complies with the Turner/Finley requirements. A Turner/Finley letter must detail "the nature and extent of counsel's diligent review of the case, listing the issues which the petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw." Zerby v. Shanon, 964 A.2d 956, 960 (Pa. Cmwlth. 2009) (citation omitted). Further, counsel must "also send to the petitioner: (1) a copy of the 'no-merit' letter/brief; (2) a copy of counsel's petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel." Id. (citation omitted). If counsel satisfies these technical requirements, we must then conduct our own review of the merits of the case. Id. If we agree that the claims are without merit, we will permit counsel to withdraw and deny relief. Id.

Upon review, we conclude Counsel has satisfied the technical requirements of Turner/Finley. Counsel discussed the nature of her review, identified the issues raised in Katonka's administrative appeal, and explained why those issues lack merit. Counsel's Br. at 11-40. Counsel sent a copy of the brief and application to withdraw to Katonka and advised him of his right to proceed pro se or with new counsel. See Appl. to Withdraw as Counsel, 10/22/21, at 1-5; Counsel's Br. at Appendix E. Katonka has not retained new counsel and has not filed a pro se response. Accordingly, we review the merits of Katonka's appeal.

III. ISSUES

Counsel has identified a number of issues raised in Katonka's pro se appeal. First, Katonka argues that the polygraph examination was the sole basis for his parole revocation, contrary to established case law. Counsel's Br. at 12. Second, Katonka contends that he was coerced to sign the waiver forms by his parole agent. Id. at 13. Third, the administration of the polygraph, requiring Katonka to purposefully lie to establish a baseline, violates the free exercise of his religion pursuant to the First Amendment of the United States Constitution and Article 1, Section 3 of the Pennsylvania State Constitution. Id. Fourth, Katonka argues that the use of polygraphs as mandatory treatment violates his right to protect his reputation under the Pennsylvania Constitution. Id. Fifth, Katonka argues that an arrest based on the therapeutic polygraph is a violation of the Fourth Amendment of the United States Constitution as an unreasonable search and seizure, and a violation of the Fourteenth Amendment as a violation of due process. Id.

IV. DISCUSSION^[5]

A. Polygraph as Sole Basis for Revocation

First, Katonka contends that his parole revocation was based solely on the polygraph examination, contrary to the established case law of Commonwealth v. A.R., 80 A.3d 1180 (Pa. 2013).^[6] Counsel's Br. at 14. This claim lacks merit.

Katonka's reliance on A.R. is misplaced because the Pennsylvania Supreme Court did not adopt the Superior Court's conclusion that polygraph results cannot serve as the sole basis for a probation violation. See A.R., 80 A.3d at 1184 n.6. Further, Katonka was discharged from sex offender treatment due to 1) his failure to follow through with recommended treatment; 2) his failure to actively and productively participate in outpatient treatment as evidenced by his failure to be truthful; and 3) his failure of the polygraph exam by having significant responses pertaining to engaging in continued deviant sexual behavior. See Supervision History, 6/17/20. Finally, Katonka signed a waiver admitting to violating his parole condition. See Waiver. Thus, the Board relied upon substantial evidence to revoke Katonka's parole; the polygraph did not constitute the sole reason for revocation; and regardless, Katonka's reliance on A.R. is misplaced. A.R., 80 A.3d at 1184 n.6; Zerby, 964 A.2d at 960.

B. Alleged Coercion

In his second claim, Katonka contends that he was coerced to sign the waiver forms by his parole agent. Counsel's Br. at 17. According to Katonka, his parole officer told Katonka that if he wanted an attorney and a hearing, he would remain incarcerated for a lengthy period of time due to the COVID-19 pandemic and limits placed upon attorney visitation. Id. at 17-18.

The waiver form used by the Board has been upheld by various courts of this state as constitutional. See, e.g., Prebella v. Pa. Bd. of Prob. and Parole, 942 A.2d 257, 261-62 (Pa. Cmwlth. 2008) (requiring only that the Board follow its own regulations and provide "necessary information" to the offender prior to signing the form). The form provided Katonka notice of his rights to a hearing and to counsel. See Waiver. Katonka then waived these rights "with full knowledge and understanding . . . of [his] own free will, without any promise, threat or coercion." Waiver. The waiver form signed by Katonka conforms to the required legal standards. See Prebella, 942 A.2d at 261-62. Accordingly, this issue lacks merit. Zerby, 964 A.2d at 960.

C. Violation of First Amendment Free Exercise of Religion

In his third claim, Katonka contends that the administration of a polygraph examination that requires a parolee to lie to establish a testing baseline violates the free exercise of his religion pursuant to the First Amendment of the United States Constitution, U.S. Const. amend. I; and article 1, section 3 of the Pennsylvania Constitution, Pa. Const. art I, § 3. Counsel's Br. at 20. This claim is without merit.

"To determine whether religious rights are unconstitutionally impinged, there are no bright line tests, but instead an analysis is made of the statute at issue and a balancing of the interests involved." Kocher v. Bickley, 722 A.3d 756, 759 (Pa. Cmwlth. 1999).^[7] Provided that the legislation does not facially discriminate against a particular religious belief or against religion generally, the government need only demonstrate that a challenged requirement is neutral, uniform, and rationally related to a legitimate public interest. Kocher, 722 A.2d at 759 (citing Nordlinger v. Hahn, 505 U.S. 1 (1992) (regulatory statute without unconstitutional classification is accorded a strong presumption of validity and is valid if there is a rational basis for the law, i.e., reasonably related to accomplishing a legitimate state interest)).

The use of therapeutic polygraphs is not enshrined in state statute but, rather, is contained within the standard special conditions for sex offenders on parole. Katonka's special conditions included mandatory sex offender evaluation treatment from an approved provider and successful completion "of all treatment recommendations, including polygraph examinations[.]" Standard Special Conditions for Sex Offenders, 3/7/2018, at 1. As a standard special condition, this applies to all sex offenders regardless of religious affiliation in a facially neutral manner. On its face, the requirement of a therapeutic polygraph test does not implicate religion in any way.

Further Pennsylvania courts have upheld the use of therapeutic...