Opinion
No. 301 M.D. 2013
06-27-2014
Dennis Richard Stief, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Before this court are the preliminary objections filed by the Pennsylvania Board of Probation and Parole (Board) to Dennis Richard Stief's pro se amended petition for review filed in this court's original jurisdiction. In his petition, Stief seeks a writ of mandamus to compel the Board to reconsider his application for parole. We sustain the Board's preliminary objections and dismiss Stief's amended petition for review.
Although Stief titled his filing a "writ of mandamus," only a court can issue such a writ. Therefore, we will treat Stief's filing as a petition for review in this court's original jurisdiction. See Nickson v. Pennsylvania Board of Probation and Parole, 880 A.2d 21, 22 (Pa. Cmwlth. 2005) (treating a prisoner's "writ of mandamus" as a petition for review in this court's original jurisdiction).
Stief is presently confined at the State Correctional Institution at Rockview. On August 3, 1998, Stief was convicted of unlawful restraint, criminal conspiracy, and rape. On December 6, 1999, Stief was convicted of rape and involuntary deviate sexual intercourse. In both June 2008 and June 2010, the Pennsylvania Department of Corrections (DOC) recommended that Stief participate in the institutional sexual offender treatment program (SOTP). Stief did not comply with DOC's recommendation because he refused to admit guilt, which is a prerequisite of the SOTP.
On March 5, 2013, the Board denied Stief parole because he failed to participate in the SOTP. On June 17, 2013, Stief filed a petition for review seeking a writ of mandamus to compel the Board to reconsider his parole application. On November 6, 2013, the Board filed preliminary objections in the nature of a demurrer under Pa. R.C.P. No. 1028(a)(4), alleging that Stief's petition should be dismissed because he failed to establish a clear legal right to relief. We agree.
The Board also objected to Stief's petition on grounds of improper service and improper paragraphing under Pa. R.A.P. 1513(c). By order dated April 8, 2014, we dismissed those objections because Stief's amended petition for review, filed on February 7, 2014, was properly served and substantially complied with Rule 1513(c).
In ruling on preliminary objections in the nature of a demurrer, we must accept as true all well-pled material facts and all inferences reasonably deducible therefrom. Barndt v. Pennsylvania Department of Corrections, 902 A.2d 589, 592 (Pa. Cmwlth. 2006).
Because mandamus is an extraordinary remedy, "[t]his [c]ourt may only issue a writ of mandamus where the petitioner possesses a clear legal right to enforce the performance of a ministerial act or mandatory duty, the defendant possesses a corresponding duty to perform the act, and the petitioner possesses no other adequate or appropriate remedy." Detar v. Beard, 898 A.2d 26, 29 (Pa. Cmwlth. 2006).
In his petition, Stief challenges as unconstitutional the requirement that he complete the SOTP before he can be considered for parole. Specifically, Stief asserts that requiring him to admit guilt as a prerequisite to the SOTP: (1) violates his right against self-incrimination; (2) forces him to commit perjury because his appeals from his criminal convictions are still pending; and (3) violates his equal protection rights because inmates convicted of non-sexual offenses are not required to admit guilt. We cannot agree.
In Weaver v. Pennsylvania Board of Probation and Parole, 688 A.2d 766 (Pa. Cmwlth. 1997), we addressed similar claims. Weaver, who had been convicted of rape, alleged that the Board violated his Fifth Amendment right against self-incrimination by denying him parole solely because he did not participate in the SOTP, which would have required him to admit guilt. He also alleged that an admission of guilt would amount to perjury because the appeal from his rape conviction was still pending. Id. at 768-69. The Weaver court noted that while an inmate is "free to assert his Fifth Amendment right against self-incrimination and refuse to admit to committing the [crime] for which he was convicted[,] . . . [h]e is not . . . immunized from all adverse consequences, if any, arising from that refusal." Id. at 778. In holding that Weaver failed to state a claim for mandamus relief, we explained:
Because there is no constitutional prohibition against using Weaver's refusal to admit that he committed the [crime] for which he was convicted as a basis for denying participation in a treatment program, and because a failure to
successfully complete that program is a valid reason for denying parole, Weaver has failed to set forth a cause of action in mandamus.Id. at 779.
See also McGill v. Pennsylvania Department of Health, Office of Drug and Alcohol Programs, 758 A.2d 268, 271 (Pa. Cmwlth. 2000) (noting that this court lacks 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").
Similarly, in Wilson v. Pennsylvania Board of Probation and Parole, 942 A.2d 270, 273 (Pa. Cmwlth. 2008), this court found no constitutional violation where the Board denied Wilson parole due to his refusal to participate in the SOTP, even though he was not convicted of a sexual offense. We recognized that the SOTP "furthers a legitimate penological objective" of rehabilitating inmates whose crimes include a sexual component. Id. We further noted that "requiring an inmate to complete institutional programming that requires the inmate to admit guilt is not conscience[-]shocking nor intended to injure the inmate in a way that is unjustified by a legitimate government interest." Id. at 273-74. Therefore, we held that Wilson failed to state a claim for mandamus relief. Id. at 274.
Although Wilson pled guilty to only drug-related offenses, DOC recommended sex offender treatment because Wilson was initially charged with corruption of minors based on the probable cause affidavit. Wilson, 942 A.2d at 272-73 & n.3. --------
Finally, this court has recognized that the constitutional guarantee of equal protection does not mandate that the government treat all persons alike; rather, it mandates that the government treat all similarly situated persons alike. Sontag v. Ward, 789 A.2d 778, 781 (Pa. Cmwlth. 2001). "Where the government action does not burden fundamental or important rights and does not create a suspect or quasi- suspect classification, there is no equal protection violation so long as it is rationally related to a legitimate government purpose." Id. Thus, in Sontag, we concluded that "the policy of requiring sex offenders to admit their guilt in order to successfully complete the [SOTP], treats all sex offenders alike and is rationally related to the purpose of rehabilitating offenders so as to protect the public." Id.
Applying the foregoing precedent to this case, we are compelled to conclude that Stief failed to establish a clear legal right to mandamus relief. Accordingly, we sustain the Board's preliminary objections in the nature of a demurrer and dismiss Stief's amended petition for review.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 27th day of June, 2014, we hereby sustain the preliminary objections filed by the Pennsylvania Board of Probation and Parole and dismiss the amended petition for review filed by Dennis Richard Stief.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge