Opinion
No. 157 M.D. 2010
08-14-2012
Romanus Miles, Petitioner v. Department of Corrections State Corrections Institution at Graterford and Jeffrey A. Beard, PH.D., Secretary Department of Corrections, Respondents
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Now before the Court are the separate motions for judgment on the pleadings filed by Petitioner Romanus Miles (Miles) and Respondents Department of Corrections, the State Correctional Institution at Graterford, and Jeffrey A. Beard, Secretary of Corrections (collectively DOC). We now deny the motion for judgment on the pleadings filed by Miles and grant the motion for judgment on the pleadings filed by DOC. We also dismiss with prejudice Miles' petition for review.
As background, Miles filed a petition for review in this Court's original jurisdiction, seeking relief in the nature of an injunction and/or in mandamus. Miles sought an order of this Court compelling DOC to: (1) discontinue an alleged practice of improperly denying inmates' applications for prerelease furloughs; (2) evaluate all such applications, including his own, under the standards set forth in 37 Pa. Code §§ 94.1-94.7; and (3) discontinue alleged retroactive application of purportedly revised eligibility requirements set forth in DOC's policy statement DC-ADM 805 (DC-ADM 805), in violation of the ex post facto clause of the United States Constitution. DOC filed preliminary objections to Miles' petition for review. In an unreported decision, Miles v. Department of Corrections (Pa. Cmwlth., No. 157 M.D. 2010, filed February 4, 2011), this Court sustained DOC's preliminary objections to Miles' claims insofar as Miles attempted to represent a class of inmates in his petition for review and also sustained DOC's preliminary objections to Miles' procedural due process and ex post facto claims. We overruled DOC's preliminary objection to Miles' general claim that DOC failed to comply with its own regulations regarding furloughs. We, therefore, directed DOC to file an answer to Miles' petition for review. After DOC filed its answer, both DOC and Miles filed the subject motions for judgment on the pleadings.
Sections 3701-3704 of the Prisons and Parole Code (Law), 61 Pa. C.S. §§ 3701-3704, relate to the Commonwealth's inmate prerelease plans. Section 3703 of the Law 61 Pa. C.S. § 3703, authorizes DOC to "establish rules and regulations for granting and administering release plans."
Article I, Section 10, Clause 1 of the United States Constitution provides that "[n]o state shall . . . pass any . . . ex post facto Law."
With the pleadings closed, we recite the pertinent and undisputed factual history reflected in Miles' petition for review and DOC's answer. In 1993, Miles was sentenced to a term of incarceration of twenty-five to fifty years. In January 2005, Miles filed an application to participate in DOC's prerelease furlough program. Miles filed a second application in December 2007, at which time Miles had served approximately fifteen years and three months of his sentence. In January 2008, DOC interviewed Miles regarding his application and denied the application on the same date.
Miles submitted a third application in November 2009. Miles' counselor in his state correctional facility told Miles that he was not eligible for the program because he had more than eighteen months remaining on his minimum sentence. The counselor also responded to Miles' "inmate request to staff member," through which Miles submitted his request, by stating that Miles "did not meet the new DC-ADM 805 requirements for a furlough." (Petition for review, Exhibit D-1.) Miles submitted a second inmate request to his counselor, asserting that he wanted an appointment to discuss his prerelease furlough request and that he believed he had been eligible for the furlough program since 2005. The counselor stated in his response: "I understand but as of March 2009 the DC-ADM 805 has changed [] come see me." (Petition for review, Exhibit D-2.)
Miles filed a grievance asserting that he was eligible for the prerelease program. DOC rejected the grievance, noting that although DOC may consider exceptions to the eighteen-month pre-minimum requirement set forth in DC-ADM 805, Miles did not meet any of the standards for the exception.
The crux of the remaining claim in Miles' petition for review is his contention that a conflict exists between regulatory and policy provisions relating to DOC's Furlough Pre-Release Program. DOC asserts that it is entitled to judgment on the pleadings, arguing that Miles is not entitled to a prerelease furlough under 37 Pa. Code § 94.3(a)(2)(ii). DOC contends that this provision anticipates that a prisoner must first qualify for release to a pre-release community corrections center under 37 Pa. Code § 94.3(a)(2)(i). Thus, DOC argues that, because Miles has not been released under this provision, he is not eligible for a prerelease furlough under 37 Pa. Code § 94.3(a)(2)(ii). Miles does not dispute the fact that he has not applied for and is not qualified for release under Section 94.3(a)(2)(i).
Miles takes exception to DOC's reference to and reliance upon this legal argument, asserting that DOC did not raise this argument in its preliminary objections. Rather, DOC only raised this argument following our earlier decision, in which we specifically mentioned our concern that the Law anticipates that DOC must first release an inmate to a community correction program before considering a furlough request. We reject Miles' argument, as there is no support for a contention that a respondent must raise every favorable legal argument in its preliminary objections or be precluded from developing the argument in its answer or subsequent filings.
Thus, our task is to determine whether DOC is correct in asserting that the relevant statutory and regulatory provisions require an inmate to have first been released to a prerelease center under 37 Pa. Code § 94.3(a)(2)(i) before being considered for a furlough under 37 Pa. Code § 94.3(a)(2)(ii). If so, then we will grant DOC's motion for judgment on the pleadings, deny Miles' motion for judgment on the pleadings, and dismiss Miles' petition for review.
In considering motions for judgment on the pleadings, we apply the following standard:
A motion for judgment on the pleadings addressed to this Court's original jurisdiction is in the nature of a demurrer, and we must consider as true the non-moving party's allegations of fact. We may consider against the non-moving party only those allegations admitted by the non-moving party. If the Court determines that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law, the Court shall enter judgment in favor of the moving party.
Section 3702 of the Prison and Parole Code (Law), 61 Pa. C.S. § 3702, which relates to prerelease plans for inmates, provides, in pertinent part:
(a) Transfer authorization.—Section 3702 of the Law (emphasis added). Section 3703 of the Law, 61 Pa. C.S. § 3703, vests authority in DOC to "establish rules and regulations for granting and administering release plans," and provides that an inmate's failure "to report to or return from the assigned place of employment, training, education or other authorized destination shall be deemed an offense under 18 Pa. C.S. § 5121 (relating to escape)."
(1) The secretary may transfer an inmate incarcerated in any prerelease center or in any prerelease center located in any State correctional institution who has not been sentenced to death or life imprisonment to any prerelease center.
(2) The transfer of the inmate to the prerelease center shall not occur where the transfer is not appropriate due to a certified terminal illness.
(b) Temporary release.—An inmate transferred to and confined in a prerelease center may be released temporarily with or without direct supervision at the discretion of the department, in accordance with rules and regulations as provided in section 3703 . . . for the purposes of gainful employment, vocational or technical training, academic education and such other lawful purposes as the department shall consider necessary and appropriate for the furtherance of the inmate's individual prerelease program subject to compliance with subsection (c).
Thus, Section 3702 of the Law, upon which Miles relies, provides inmates with an opportunity to transfer or to be granted temporary unsupervised prerelease only in such circumstances where an inmate already has been released to a prerelease center. With this observation in mind, we turn to the regulations DOC has adopted pursuant to the Law.
DOC's regulations provide for the following three basic categories of prerelease programs: (1) work release/educational/vocational training; (2) temporary home furlough; and (3) community corrections. The latter group—community corrections—includes three subgroups: community corrections center residency, group home residency, and community corrections furlough. Because Miles has not suggested that he is seeking a work release/educational/vocational prerelease or a temporary home furlough, we assume for the purposes of our review that the prerelease program for which he seeks approval by DOC is the third type of community corrections prerelease program—a community corrections furlough program—described in 37 Pa. Code § 94.2(c)(3), as follows:
We see no authority in the Law for a temporary home furlough that is not preceded by participation in a community corrections program. The Law, as noted above, speaks only of transfers to a "center," before an inmate may be released without supervision, such as which must occur either during a "temporary home furlough" under 37 Pa. Code § 94.2(b) or a "community corrections furlough" under 37 Pa. Code § 94.2(c)(3). We note that the policy upon which Miles relies, DC-ADM 805, which mirrors, to some extent, the prerelease program regulation, includes three types of community corrections programs, one of which is referred to as a "Community Contract Facility." Thus, it appears that the reference in the regulation and DC-ADM 805 to a facility is likely a reference to a Community Correction Facility, or a similar facility located in a state correctional institution, rather than a state correctional institution itself. This conclusion is supported by our recognition above, that the Law provides no specific authority for a direct release from a state correctional institution to an unsupervised furlough, and, we must interpret the regulations in light of the limitations imposed by the Law.
Community corrections furlough program. This is a program which complements community corrections center residency and is permitted with the approval of the community corrections center director or contract coordinator. It is the authorized release of an inmate from a community corrections center or group home for a period not to exceed 7-consecutive days for the purpose
of furthering the inmate's reintegration into the community. The inmate is required to return to the center or group home at a designated time.
The pertinent DOC regulation provides as follows with regard to the eligibility requirements that DOC has adopted for participation in prerelease programs:
Procedures for participation in prerelease programs.
(a) The criteria for eligibility for prerelease programs are as follows:
(1) Inmates who have been sentenced to death or life imprisonment or other offenses specified by [DOC] in . . . DC-ADM 805—Policy and Procedures for Obtaining Pre-release—or any [DOC] document that is disseminated to inmates are not eligible.
(2) Time-served requirements are as follows:
(i) To be time-eligible for placement in a community corrections center or group home, the inmate shall have completed at least one-half of the inmate's minimum sentence, be within 1 year of completing his minimum sentence, have no outstanding detainers, and have served at least 9 months in a facility. Exceptions may be made with written approval of the Secretary or a designee, when early transfer is necessary to assist in the inmate's access to medical or mental health care or to provide a longer period of participation for an inmate who has been confined for an unusually long period of time. A contact may not be made with the court until the approval is obtained.
(ii) For other prerelease programs, the inmate is time-eligible after the inmate has completed one-half of the inmate's minimum sentence or one-half of the period ending with anticipated release date of an indeterminate sentence and has served at least 9 months in a facility. The inmate may have no detainers lodged against him for an untried offense or for a sentence with a maximum term in excess of 2 years. Inmates who are otherwise
time-eligible who have detainers lodge against them for less than 2 years can be time-eligible for a prerelease program except community corrections center or group home upon written approval of the Secretary or a designee. No contact may be made with the court until the approval is obtained.37 Pa. Code § 94.3 (emphasis added).
Because 37 Pa. Code § 94.2(c)(3), by implication, indicates that only persons who are participating in a community corrections residence program may participate in a community corrections furlough program, we necessarily must conclude that, before an inmate may be considered for a furlough under the Law and the regulations, he must first have been transferred to a community corrections program. In this case, Miles does not aver that he has been considered for and/or admitted to a community corrections program, and, he does not dispute that he is incarcerated at SCI-Graterford. As DOC notes, if the Court were to adopt Miles' interpretation of the regulations to mean that he is eligible for unsupervised release (which is what is expected in a furlough), such an interpretation would mean that he has to meet less onerous requirements to be released into the community than those inmates who have been accepted into a prerelease community corrections program, which involves some degree of supervision. In other words, under Miles' interpretation of the regulations, an inmate would be eligible for the unsupervised prerelease programs identified in 37 Pa. Code § 94.3(2)(ii) at an earlier time in the course of serving his sentence than he would be if he were participating in the other supervised programs identified in Section 94.3(2)(i).
On the surface, DC-ADM 805 appears to muddle the interpretive analysis we employed earlier by including the eighteen-month, pre-minimum sentence time period with regard to the subject furlough program where the pertinent regulation is silent on such an eligibility requirement. DOC, however, suggests a means to resolve this question. DOC explains that the eighteen-month provision contained in DC-ADM 805 is reasonable when considered in the light of the power of the Secretary of Corrections, under 37 Pa. Code § 97.3(2)(i), to make exceptions to the eligibility requirement of that subsection, which generally requires that inmates be within one year of having served their minimum sentence. DOC suggests that, if the Secretary approves an exception to the requirement under subsection (2)(i), and admits an inmate to one of the supervised prerelease programs described under that section before the inmate is within one year of serving his minimum sentence, then the eighteen-month, pre-minimum sentence requirement in DC-ADM 805 would simply prevent such inmates from being eligible for the other programs identified in subsection (2)(ii) until they have served to within eighteen months of their minimum sentence.
For example, an inmate may apply for admission to a prerelease program under subsection (2)(i) when he has twenty-four months remaining before completing service on his minimum sentence. Ordinarily, subsection (2)(i) would mean he is not yet eligible. If, however, he seeks approval to a subsection (2)(i) program, through the Secretary's power to permit exceptions to this eligibility requirement, and the Secretary grants such an exception, the inmate would still have to wait until he has served to within eighteen months of his minimum sentence before he could be eligible for a prerelease program under subsection (2)(ii).
In considering the rules of statutory construction, which apply to the interpretation of regulatory provisions, Presock v. Department of Military and Veterans Affairs, 855 A.2d 928, 931 (Pa. Cmwlth. 2004), we note that those rules instruct us that we should apply a construction that does not produce an absurd result. 1 Pa. C.S. § 1922(1). We are also guided by the well-settled precedent that "courts defer to an administrative agency's interpretation of its own regulations unless that interpretation is unreasonable. The task of the reviewing court is limited to determining whether the agency's interpretation is consistent with the regulation and with the statute under which the regulation was promulgated." Dep't of Envtl. Prot. v. N. Am. Refractories Co., 791 A.2d 461, 464-65 (Pa. Cmwlth. 2002) (citations omitted) (citing Martin v. Occupational Safety and Health Review Comm'n, 499 U.S. 144 (1991)). If we apply Miles' proffered interpretation of the regulations, we conclude that the result would be absurd and also inconsistent with the Law. In contrast to Miles' interpretation, DOC's interpretation is reasonable and consistent not only with the regulations, but, more importantly, with the Law.
In his reply brief, Miles asserts that DOC has granted furloughs to inmates while they have been incarcerated in a state correctional institution and without first being released to a community corrections program. Miles points to paragraphs 52-56 of his petition for review. In those averments, Miles offers examples of inmates who he claims have been granted furloughs before satisfying the eighteen-month requirement set forth in DC-ADM 805. However, while Miles asserts in his brief that these inmates are also examples of inmates who were released without first being admitted to a community corrections facility, he does not plead such facts in his petition for review. Further, at least one of these individuals clearly had been first released on parole. We cannot delve into the intricacies of the particular cases as Miles has not pleaded any additional facts that tend to demonstrate that these inmates were not otherwise qualified in accordance with our interpretation of the Law and the regulations. Moreover, the simple fact that DOC itself may have misinterpreted its power under the Law is of no consequence in evaluating the primary question before the Court.
Based upon the discussion above, we conclude that because Miles has not been released to a prerelease program under 37 Pa. Code § 94.3(2)(i), there are no material issues of fact remaining. Accordingly, we will grant DOC's motion for judgment on the pleadings, and we will deny Miles' motion for judgment on the pleadings.
In its brief, DOC also asks this Court to strike certain averments, arguments, and attachments that Miles included in his brief. While we agree with DOC's assertion that Miles has included factual allegations and exhibits that he did not include in his petition for review, the Court will not and has not considered factual matters that Miles did not raise in his petition for review in resolving the motions for judgment on the pleadings. Consequently, we need not formally enter an order striking such facts and exhibits. --------
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 14th day of August, 2012, the motion for judgment on the pleadings filed by Petitioner Romanus Miles (Miles) is DENIED. The motion for judgment on the pleadings filed by Respondents is GRANTED, and, Miles' petition for review is hereby DISMISSED with prejudice.
/s/_________
P. KEVIN BROBSON, Judge
Curley v. Smeal, 41 A.3d 916, 919 n.3 (Pa. Cmwlth. 2012) (citations omitted).