Opinion
No. 279 M.D. 2012
05-23-2013
Russell Robinson, Petitioner v. Board of Probation and Parole and Department of Corrections, Respondents
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Before this court in our original jurisdiction are the preliminary objections filed by the Pennsylvania Board of Probation and Parole (Board) and the Department of Corrections (DOC) (collectively, Respondents) to Russell Robinson's pro se amended petition for review. Robinson asks this court to issue a writ of mandamus ordering DOC to remove the requirement that he complete "Phase II" of the Sex Offender Treatment Program (SOTP) or hold a hearing regarding his being required to complete "Phase II" of the SOTP, and ordering the Board to not consider Robinson's refusal to complete "Phase II" of the SOTP as a factor in his parole review. We sustain Respondents' preliminary objections and dismiss Robinson's amended petition for review.
Robinson was convicted of indecent assault and corruption of minors in 1992. Robinson claims that during a subsequent incarceration for third-degree murder, he completed "Phase I" of the SOTP. Presently, Robinson is serving a term of incarceration in DOC's custody on drug charges.
DOC's treatment service officials recommended that Robinson participate in "Phase II" of the SOTP. Robinson has not complied with DOC's recommendation. The Board, on April 13, 2011, denied Robinson parole, in part, based upon his "need to participate in and complete additional institutional programs." (Bd. Decision, 4/21/11, at 1.) The Board further noted in its decision that whether Robinson "successfully completed a treatment program for sex offenders" would be considered in future parole reviews. (Id.)
On March 26, 2012, Robinson petitioned for review with this court seeking mandamus relief directing DOC to remove the requirement that he complete Phase II of the SOTP or to hold a hearing regarding Robinson being required to complete "Phase II" of the SOTP and the Board to not consider his refusal to complete "Phase II" of the SOTP as a factor in his parole review. On August 6, 2012, Robinson filed an amended petition for review. On September 10, 2012, Respondents filed preliminary objections in the nature of a demurrer.
Respondents argue in their preliminary objections that Robinson's petition for review seeking mandamus should be rejected because Robinson failed to establish a clear legal right to the relief he seeks. We agree.
Pa. R.C.P. No. 1028(a) states:
(a) [p]reliminary objections may be filed by any party to any pleading and are limited to the following grounds:
In a demurrer, we must accept as true all well-pled material allegations and all inferences reasonably deducible therefrom. Aviles v. Pennsylvania Department of Corrections, 875 A.2d 1209, 1211 n.3 (Pa. Cmwlth. 2005). "[C]onclusions of law, unwarranted inferences, argumentative allegations or expressions of opinion need not be accepted . . . ." McGill v. Pennsylvania Department of Health, Office of Drug and Alcohol Programs, 758 A.2d 268, 270 (Pa. Cmwlth. 2000). In sustaining a demurrer, it must be apparent that the law will not permit recovery and any doubts must be resolved by a refusal to sustain the demurrer. Aviles, 875 A.2d at 1211 n.3.
* * *
(4) legal insufficiency of a pleading (demurrer).
Mandamus "is an extraordinary remedy [that] compels official performance of a ministerial act or a mandatory duty." McGill, 758 A.2d at 270. Mandamus is based upon the duty of an agency to follow a law and is to be granted only when the agency has an absolute ministerial duty to act a certain way. Weaver v. Pennsylvania Board of Probation and Parole, 688 A.2d 766, 777 (Pa. Cmwlth. 1997). "[I]n an action in mandamus involving an administrative agency's exercise of discretion, the court may only direct the agency to perform the discretionary act and may not direct the agency to exercise its judgment or discretion in a particular way or direct the retraction or reversal of action already taken." McGill, 758 A.2d at 270.
The court will issue a writ of mandamus only when the petitioner has a clear legal right to enforce performance of the ministerial act, the respondent has a corresponding duty to perform the act, and the petitioner does not have another adequate or appropriate remedy. Saunders v. Pennsylvania Department of Corrections, 749 A.2d 553, 556 (Pa. Cmwlth. 2000). "The purpose of mandamus is not to establish legal rights, but to enforce those rights already established beyond peradventure." McGill, 758 A.2d at 270.
Here, Robinson first attempts to compel DOC to remove the requirement that he complete "Phase II" of the SOTP. Robinson has no clear legal right to remove the recommendation that he participate in SOTP. DOC has the authority to choose the programs that are necessary and conducive to an inmate's rehabilitative needs and such decision is entitled to judicial deference. Dial v. Vaughn, 733 A.2d 1, 4 (Pa. Cmwlth. 1999); see 37 Pa. Code §91.2 (providing that DOC's goal is to operate its institutions and programs to provide protection to the community, a safe and humane environment, and opportunities for rehabilitation).
DOC determined that Robinson should complete "Phase II" of the SOTP. We do not have the authority to usurp that determination. No authority precludes DOC from recommending that Robinson complete "Phase II" of the SOTP, and Robinson is not entitled to an order removing the recommendation that he participate in the SOTP.
Next, Robinson asks this court to issue a writ of mandamus ordering DOC to hold a hearing regarding his being required to complete "Phase II" of the SOTP. Robinson contends that he has been denied due process of law because he was not imprisoned for a sex offense, is being required to take "Phase II" of the SOTP, and was being classified as a sexual offender without a hearing.
In Renchenski v. Pennsylvania Department of Corrections, 622 F.3d 315, 320 (3d Cir. 2010), Renchenski was serving a life sentence for first-degree murder without the possibility of parole. DOC classified him as a sex offender and recommended enrollment in the SOTP. Renchenski was "never charged with, nor convicted of, a sexual offense." Id. Renchenski filed a 42 U.S.C. §1983 action, which alleged that his being forced to participate in the SOTP violated, among other things, his Fourteenth Amendment right to due process before being labeled a sex offender. Id.
The federal court of appeals determined that "the stigmatizing effects of being labeled a sex offender, when coupled with mandatory behavioral modification therapy, trigger[ed] an independent liberty interest emanating from the Due Process Clause of the Fourteenth Amendment." Renchenski, 622 F.3d at 328. The court further determined that because Renchenski had never been charged or convicted of a sex offense, he did not receive the proper procedural safeguard for Fourteenth Amendment purposes during his trial and conviction for murder; therefore, Renchenski was entitled to a due process hearing. Id. at 331.
Here, however, Robinson had been previously convicted of the sex offenses of indecent assault and corruption of minors. There is no allegation that Robinson was not afforded due process during his trial and conviction for the sex offenses. Therefore, we must assume that Robinson did receive the proper due process during his trial and conviction for the sex offenses prior to being labeled a sex offender. See Renchenski, 622 F.3d at 331.
Lastly, Robinson attempts to compel the Board to not consider his refusal to complete "Phase II" of the SOTP as a factor in his parole review.
The Board has a duty to protect the safety of the public. In doing so, the Board must gather records and other information to aid in its decision-making process. The Board considers the conduct of the offender while in prison and any completed rehabilitative programs. If DOC requires an inmate to participate in a program, the inmate's refusal to do so is a valid reason for denying parole. --------
In McGill we stated that:
a prisoner has no constitutionally protected liberty interests in being released from confinement prior to expiration of his or her maximum term of sentence. Parole is nothing more than a possibility, and if granted, it merely constitutes a favor given by the state, as a matter of grace and mercy, to a prisoner who has demonstrated a probability of his or her ability to function as a law-abiding citizen in society.758 A.2d at 271 (citations omitted).
Under [s]ection 17 of the Act of August 6, 1941, P.L. 861, commonly known as the Parole Act, as amended, 61 P.S. §331.17, the Board has the exclusive power and the broad administrative discretion in determining if and when a prisoner should be released on parole. Consequently, this [c]ourt does not have jurisdiction to issue a writ of mandamus preventing the Board from denying a parole based on the prisoner's failure to complete the rehabilitation program designated by the prison officials.
Because Robinson did receive the proper due process, we cannot "prevent the Board from denying a parole based on the prisoner's failure to complete the rehabilitation program designated by the [DOC]." Id. We conclude that Robinson failed to state a valid cause of action in mandamus against Respondents.
Accordingly, we sustain Respondents' preliminary objections in the nature of a demurrer and dismiss Robinson's amended petition for review with prejudice.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 23rd day of May, 2013, we sustain the preliminary objections filed by the Pennsylvania Board of Probation and Parole and the Department of Corrections and dismiss with prejudice the amended petition for review filed by Russell Robinson.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge