Dodgson v. Pennsylvania Department of Corrections

922 A.2d 1023, 2007 Pa. Commw. LEXIS 196
CourtCommonwealth Court of Pennsylvania
DecidedMay 3, 2007
StatusPublished
Cited by15 cases

This text of 922 A.2d 1023 (Dodgson v. Pennsylvania Department of Corrections) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dodgson v. Pennsylvania Department of Corrections, 922 A.2d 1023, 2007 Pa. Commw. LEXIS 196 (Pa. Ct. App. 2007).

Opinion

OPINION BY

Judge COLINS.

Before this Court in its original jurisdiction is a pro se petition for writ of mandamus filed by Keith W. Dodgson (Dodgson) requesting that this Court direct the Pennsylvania Department of Corrections, Jeffrey Beard, Secretary, the Pennsylvania Board of Probation and Parole and Pennsylvania Attorney General Thomas Corbett (collectively Respondents) to reconsider him for parole without applying 42 Pa.C.S. § 9795.4(g) regarding Sexual Offender Assessment and 42 Pa.C.S. § 9718-.1 regarding Sexual Offender Treatment.

[1025]*1025Dodgson is an inmate incarcerated at the state correctional institution at Way-mart, who is serving a sentence of 5 years and 9 months to 12 years for involuntary deviate sexual intercourse and sexual abuse of children after having been convicted in the Lackawanna County Court of Common Pleas. Dodgson’s minimum sentence was August 16, 2003, and his maximum sentence is November 16, 2009. On May 22, 2003, Dodgson was denied parole, after which he filed a petition for review to this Court, that was denied on December 22, 2003. In May of 2003, the Parole Board asked that the Sex Offender Assessment Board conduct an assessment of Dodgson pursuant to 42 Pa.C.S. § 9795.4(g) 1 In May of 2005 and in July of 2005, Dodgson was again denied parole. The Parole Board’s reasons for its July 2005 denial were: the prosecuting attorney’s recommendation; the recommendation from the Department of Corrections; and assessments, evaluations and reports, regarding Dodgson’s mental and physical history, condition, and behavior. In its July 2005 decision, the Parole Board also notified Dodgson that at his next parole interview, it would consider whether Dodgson had participated in a sex offender treatment program.

On or about October 20, 2006, Dodgson filed a petition for a writ of mandamus averring that Respondents erred in denying him parole, and requesting that this Court prohibit Respondents from utilizing the 1996 amended parole laws, specifically 63 P.S. § 331.192, and from applying 42 Pa.C.S. § 9795.4(g) concerning Sexual Offender Assessment and 42 Pa.C.S. § 9718.13 concerning Sexual Offender [1026]*1026Treatment in considering him for parole. More specifically, Dodgson avers that Respondents, by applying 42 Pa.C.S. § 9795.4(g) to him retroactively in requiring that he undergo a psychologist’s assessment of him as a sexual offender in keeping with Megan’s Law, are violating the ex post facto clause of the United States Constitution4, and that by applying 42 Pa.C.S. § 9718.1 to him retroactively, in requiring that he participate in sexual offender treatment programs, are violating his Constitutional rights of due process, equal protection, protection against self-incrimination and access to the courts. It is Dodgson’s position that labeling him a “sexual offender” and compelling his participation in sex offender treatment programs while incarcerated constitute a sentence enhancement.

On November 20, 2006, Respondents filed preliminary objections in the nature of a demurrer averring that Dodgson’s complaint in mandamus fails to state a claim on which relief can be granted in that: (1) the Parole Board’s refusal to disseminate Dodgson’s sexual offender assessment does not violate his due process rights; and (2) applying the sexual offender assessment and sexual offender treatment to Dodgson does not violate his constitutional rights with respect to the ex post facto clause, due process, self-incrimination, assistance of counsel, and access to the courts.

Initially, the Court takes note of Dodgson’s circuitous and nebulous argument that the Parole Board should not be permitted to conduct a sex offender assessment of him or to use prior assessments and reports in making its parole determination without providing him with a copy of such reports. This issue as presented in Dodgson’s rambling brief, however, lacks sufficient clarity and specificity for this Court to address as part of any meaningful appellate review.

Dodgson’s allegations that imposing the provisions of 42 Pa.C.S. § 9795.4(g) regarding sexual offender assessment upon him violate his constitutional rights with respect to, among others areas, the ex post facto clause, are without merit. A similar issue arose in McGarry v. Pennsylvania Board of Probation and Parole, 819 A.2d 1211, wherein McGarry filed a petition for writ of mandamus alleging that 42 Pa.C.S. § 9795.4(g) violated his constitutional rights. This Court disagreed and stated:

As to whether Section 9795.4(g) of Megan’s Law facially violates the proscription against ex post facto laws, we conclude that it does not. Section 9795.4(g) provides that the Board may request an assessment of an offender or sexually violent predator before considering that individual for parole. That Section does not affect an offender’s eligibility or opportunity to be paroled; it does not impose any additional requirements or restrictions upon an offender before he can be considered for parole. Instead, it merely allows the Board to [1027]*1027collect information such as facts regarding the current offense, prior offense history, characteristics of the individual and factors that are supported in an assessment which are filed as criteria reasonably related to the risk of reof-fense, ... which are necessary for its consideration of an offender for parole purposes. Because the application of Section 9795.4(g) does not alter any standards for his eligibility for parole, it does not create a significant risk of increasing the severity of McGarry’s punishment such that it violates the ex post facto clause of the United States Constitution.
In any event, even if Section 9795.4(g) of Megan’s Law could otherwise be considered an ex post facto law, in this case, the clause is not implicated because, even before its enactment, the Board had the authority to request an assessment of an offender prior to considering him for parole pursuant to Section 19 of the Act of August 6, 1941, P.L. 861, as amended, 61 P.S. § 381.19, commonly referred to as the Parole Act_[Foot-notes omitted.]

Id. at 1215. The holding of the McGarry Court is that the Parole Board has the right to use an assessment as provided for by Section 9795.4(g) to assist in its determination of parole eligibility, and that said practice does not create a substantial risk of increasing the severity of an individual’s punishment, is equally applicable to Dodgson’s situation. Moreover, as stated in McGarry, notwithstanding 42 Pa.C.S. § 9795.4(g), the Parole Act allows the Parole Board to request and use an assessment as part of its parole determination process, a procedure equally applicable to Dodgson.

Similarly, with respect to Dodgson’s allegations that applying 42 Pa.C.S. § 9718.1 also violates his constitutional rights, an analogous situation in Evans v. Board of Probation and Parole, 820 A.2d 904, 914-15 (Pa.Cmwlth.2003), petition for allowance of appeal denied, 580 Pa. 550, 862 A.2d 583 (2004), is relevant. In Evans,

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Bluebook (online)
922 A.2d 1023, 2007 Pa. Commw. LEXIS 196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dodgson-v-pennsylvania-department-of-corrections-pacommwct-2007.