Robinson v. Pa. Parole Bd.

306 A.3d 969

Anthony ROBINSON, Petitioner

v.PENNSYLVANIA PAROLE BOARD, Respondent

No. 253 M.D. 2022

Commonwealth Court of Pennsylvania.

Submitted on Briefs March 17, 2023

Decided November 30, 2023

Appealed from No. 359GU, Pennsylvania Parole Board.

Anthony Robinson, Pro Se.

Timothy P. Keating, Assistant Counsel, Harrisburg, for Respondent.

BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE ELLEN CEISLER, Judge, HONORABLE LORI A. DUMAS, Judge

OPINION BY JUDGE DUMAS

Before this Court, in our original jurisdiction, are the preliminary objections in the nature of a demurrer filed by the Pennsylvania Parole Board (Board). The Board challenges the Petition for Writ of Mandamus (Petition) filed pro se by Anthony Robinson (Petitioner). Petitioner has requested that this Court compel the Board to grant his automatic reparole. For the following reasons, we sustain the Board’s demurrer and dismiss the Petition with prejudice.

I. BACKGROUND¹

On January 10, 2020, Petitioner was discharged from the Harrisburg Community Corrections Center (CCC) and returned to State Correctional Institution (SCI)-Laurel Highlands.² On March 30, 2020, the Board recommitted Petitioner as a technical parole violator (TPV) to a CCC with automatic reparole no later than July 10, 2020, provided Petitioner remained in good standing with the Board and successfully completed all recommended programs. However, Petitioner twice refused placement at a CCC.³ On July 9, 2020, the Board issued a warrant to commit and detain Petitioner for parole rescission. See Pet., Ex. D, Bd.’s Warrant, 7/9/20.

Citing in relevant part Petitioner’s placement refusals, the Board scheduled a parole rescission hearing for July 23, 2020. At the hearing, Petitioner explained that his refusals were due to health concerns amid the COVID-19 pandemic.⁴ Petitioner is on dialysis and wished to avoid the crowded environment at a CCC.

On August 4, 2020, the Board rescinded Petitioner’s automatic reparole and agreed to consider an approved home plan on or after January 2021.⁵ Petitioner filed an administrative appeal asserting a violation of his Eighth Amendment right of protection against cruel and unusual punishment. See U.S. Const. amend. VIII. The Board denied administrative relief and affirmed its prior decision. See Pet., Ex. H, Bd.’s Resp., 11/2/21. The Board explained that it rescinded Petitioner’s automatic reparole because Petitioner twice refused placement into a CCC. See id.

On April 21, 2022, Petitioner commenced this action in mandamus, requesting that this Court direct the Board to "comply with the Eighth Amendment," "rescind its decision," and "re-establish [] Petitioner’s parole." Pet., ad damnum cl. The Board timely filed preliminary objections in the nature of a demurrer, asserting that (1) Petitioner lacks a clear right to the relief requested and (2) the Board lacks a corresponding duty to grant the requested relief.⁶ Prelim. Objs., 5/17/22, at 6.

II. DISCUSSION⁷

[1–8] Petitioner seeks mandamus relief. Mandamus is an extraordinary reme- dy "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." Toland v. Pa. Bd. of Prob. & Parole, 263 A.3d 1220, 1232 (Pa. Cmwlth. 2021) (cleaned up). A petitioner may not use mandamus "to compel a purely discretionary act." Coady v. Vaughn, 564 Pa. 604, 770 A.2d 287, 290 (2001). "[T]he purpose of mandamus is not to establish legal rights, but to enforce rights [that] are already established." Clark v. Beard, 918 A.2d 155, 159 (Pa. Cmwlth. 2007).

[9, 10] It is well settled that the Board has been granted broad discretion in parole matters by the legislature. Coady, 770 A.2d at 289; Rogers v. Pa. Bd. of Prob. & Parole, 555 Pa. 285, 724 A.2d 319, 322 (1999); Commonwealth v. Vladyka, 425 Pa. 603, 229 A.2d 920, 922 (1967); see also Sections 6131-32 of the Prisons and Parole Code (Code), 61 Pa.C.S. §§ 6131-32. The scope of this discretion extends to the rescission and denial of parole. Johnson v. Pa. Bd. of Prob. & Parole, 110 Pa.Cmwlth. 142, 532 A.2d 50, 53 (1987). Further, "mandamus will not lie where the substance of the [B]oard’s discretionary action is the subject of the challenge." Coady, 770 A.2d at 290; Weaver v. Pa. Bd. of Prob. & Parole, 688 A.2d 766, 777 (Pa. Cmwlth. 1997) (recognizing that mandamus is inappropriate to compel the exercise of "discretion in a certain manner or to arrive at a particular result"); see also Homa v. Pa. Bd. of Prob. & Parole, 192 A.3d 329, 334 (Pa. Cmwlth. 2018) (limiting mandamus relief to where the Board has "failed to follow its statutory duties").

A. The Parties’ Arguments

In its preliminary objections, the Board asserts that Petitioner cannot establish a clear right to relief or that the Board had a duty to grant the relief requested. See Bd.’s Br. at 6-9. According to the Board, its decision to rescind Petitioner’s automatic reparole was discretionary, and, thus, Petitioner’s mandamus claim fails. See id. In support, the Board relies on Henderson v. Pennsylvania Parole Board, 277 A.3d 633 (Pa. Cmwlth. 2022), and focuses on Petitioner’s status while serving his recommitment and awaiting reparole. According to the Board, Petitioner never achieved parolee status and, therefore, lacked any vested liberty interest to challenge the Board’s discretionary act. See generally Bd.’s Br.

Although his brief is difficult to parse, Petitioner appears to challenge the Board’s assertion that he was never a parolee. See Pet’r’s Br. at 8 (suggesting the Board’s assertion "is a misconception"). According to Petitioner, despite his ongoing confinement at SCI-Laurel Highlands, the Board’s administrative actions document his status. See Pet’r’s Br. at 8-9. Essentially, Petitioner argues that he was paroled as of July 10, 2020, regardless of where he was housed at the time. Petitioner also rejects the Board’s reliance on Henderson. According to Petitioner, Henderson merely precludes automatic reparole for those TPVs that commit assaultive misconducts. Because Petitioner never received a misconduct for assaultive behavior, Petitioner contends that Henderson is inapposite. See id. at 9-11. Petitioner also suggests that the Board’s efforts to deny his parolee status reveal an underlying strategy to deprive him of due process lights, ignore the public health concerns prevalent at the time, and punish him for seeking more favorable housing. See id. at 12-19.

B. The Board’s Reliance on Henderson is Persuasive

While not directly on point, the Board’s reliance on Henderson is persuasive. In that case, the Board recommitted Henderson as a TPV to serve six months’ backtime with automatic reparole. 277 A.3d at 634. Following his recommitment, Henderson received a disciplinary misconduct for assaultive behavior.⁸ Id. Accordingly, the Board rescinded his automatic reparole without a hearing. Id. at 635. Henderson sought administrative relief, which the Board denied, citing in support Section 6138(d)(5) of the Code.⁹ Id.

Henderson then petitioned this Court for appellate review, asserting a violation of his due process rights because the Board had rescinded his reparole without a hearing, but this Court denied relief. See id. at 636-38. Relying upon the plain language of Section 6138, the Court concluded that the recommitment period and automatic reparole provisions "shall not be applicable" to a TPV who has committed assaultive behavior. Id. at 636 (quoting 61 Pa.C.S. § 6138(d)(5)(i)) (emphasis in quotation removed). Further, as the Board’s authority was limited to "those powers conferred upon it by the General Assembly in clear and unmistakable language," the Court opined that the Board was prohibited from granting the parolee relief. Id. at 636 (quoting Penjuke v. Pa. Bd. of Prob. & Parole, 203 A.3d 401, 416 (Pa. Cmwlth. 2019)).

In addressing the Board’s rescission without a hearing, the Court also clarified a TPV’s status during his recommitment. Id. at 637-38. According to the Court, "a grant of parole by itself does not vest a prisoner with any protected liberty interest in that parole." Id. at 637. The grant of parole is executed when "the prisoner signs the acknowledgement of parole conditions … and the Board issues its parole release order …." Id. (citing several cases).¹⁰ Because those steps had not occurred, Henderson had not attained the status of a parolee. See id. at 638.

[11, 12] Thus, Henderson is instructive for two reasons. First, "a prisoner does not attain the status of a ‘parolee’ until the grant of parole is actually executed." Id. at 637. Second, a TPV’s conduct following recommitment may endanger or even void an automatic reparole. Id. at 636 (citing Section 6138 of the Code).

C. Petitioner Lacks a Vested Liberty Interest in his Reparole

[13] Petitioner’s status is relevant to whether he has a clear right to relief. See Toland, 263 A.3d at 1232; Clark, 918 A.2d at 159. It is evident that Petitioner never attained parolee status following his recommitment in January 2020. Whatever the precise circumstances surrounding his unsuccessful discharge from the Harrisburg CCC, upon his recommitment to SCI-Laurel Highlands, Petitioner was confined as a prisoner housed at that institution. As memorialized by the Board’s written decision, "[w]hile confined [Petitioner] must abide by the rules and regulations of the institution and comply with the institution’s prescriptive program requirements[.]" Pet., Ex. B, Notice of Bd. Dec., 3/30/20, at 1 (unnecessary capitalization removed). Further, the Board informed Petitioner that he was eligible for automatic reparole but clarified that "this Board action will not take effect until you have signed the conditions …[,] and the release orders … have been issued." Id. at 3 (unnecessary capitalization removed; emphasis added).

Petitioner has not pleaded, nor is it a reasonable inference from his...