Mickens-Thomas v. Commonwealth, Board of Probation & Parole

699 A.2d 792, 1997 Pa. Commw. LEXIS 354
CourtCommonwealth Court of Pennsylvania
DecidedAugust 12, 1997
StatusPublished
Cited by27 cases

This text of 699 A.2d 792 (Mickens-Thomas v. Commonwealth, Board of Probation & Parole) 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
Mickens-Thomas v. Commonwealth, Board of Probation & Parole, 699 A.2d 792, 1997 Pa. Commw. LEXIS 354 (Pa. Ct. App. 1997).

Opinion

MIRARCHI, Jr., Senior Judge.

Before this Court is a motion for peremptory judgment and summary relief filed by Louis Miekens-Thomas (Thomas), a sixty-eight year old inmate at the State Correctional Institution at Graterford, in his action in mandamus against the Pennsylvania Board of Probation and Parole and its chairman (collectively, Board).

On November 26, 1996, Thomas filed a petition for review in the nature of an action in mandamus invoking this Court’s original jurisdiction. The following facts alleged by Thomas are undisputed. In 1993, while serving a term of life imprisonment for his conviction of first degree murder, Thomas applied for a commutation of his sentence with the Pennsylvania Board of Pardons (Board of Pardons). In July 1994, the Board of Pardons recommended, after a public hearing, that Thomas’ sentence be commuted from life imprisonment to a minimum term of thirty-one years, nine months, six days to life.

On January 14, 1995, the then Governor Robert Casey commuted Thomas’ sentence as recommended by the Board of Pardons. Pursuant to the commutation order, Thomas’ minimum term of the commuted sentence was to expire on July 21, 1996, and he “may be eligible for pre-release consideration at the discretion of the Dept, of Corrections.” The Department of Corrections subsequently refused to accept Thomas into a prerelease program. Thomas then filed an application for parole in July 1996, when his commuted minimum term expired.

In a letter dated September 25, 1996, the Board informed Thomas that it would not take action on his application because he was ineligible for parole under Section 34.1(a)(3) of the Act of August 6, 1941, P.L. 861, as amended, added by the Act of June 1, 1995, P.L. 1020, commonly known as the Parole Act (Act), 61 P.S. § 331.34a(a)(3). Section 34.1(a)(3), which was added as part of the 1995 amendment to the Act and became effective on July 31,1995, provides in pertinent part:

In no ease shall the board act upon an application of an inmate whose term of imprisonment was commuted from life to life on parole or upon an inmate who was serving a term of imprisonment for a crime of violence or is an inmate serving a sentence under 42 Pa.C.S. § 9712 (relating to sentences for offenses committed with firearms) unless the inmate has served at least one year in a prerelease center. (Emphasis added.)

The Board stated in the letter that it would not consider Thomas’ application until it is notified by the Department of Corrections that he has completed at least one-year service in a prerelease center, as required by Section 34.1(a)(3).

Thomas then filed the action in mandamus, seeking this Court’s order directing the Board (1) to immediately release him on parole or in the alternative, (2) to immediately consider and rule on his application for [795]*795parole. Thomas alleged that he is not subject to the requirements set forth in Section 34.1(a)(3) because that section became effective after his sentence was commuted on January 14, 1995, and that a retroactive application of Section 34.1(a)(3) to his request for parole would violate (1) the ex post facto clauses of the United States and Pennsylvania Constitutions; (2) the principle of separation of powers and the Governor’s exclusive power to grant commutations under Article IV, Sections 2 and 9 of the Pennsylvania Constitution, and (3) his due process rights and liberty interests in the effectuation of the commutation order.

Thomas further asserted that the Board failed to comply with Section 21 of the Act in effect before the 1995 amendment, which provided in pertinent part:

[I]f the Board of Parole refuse to parole the prisoner at the expiration of any minimum term fixed by the Pardon Board, it shall, within ten days after the date when the minimum term expired, transmit to the Pardon Board a written statement of the reasons for refusal to parole the prisoner at the expiration of the minimum term fixed by the Pardon Board. Thereafter, the Pardon Board may either accept the action of the Board of Parole, or order the immediate release of the prisoner on parole, under the supervision of the Board of Parole. (Emphasis added.)1

The Board subsequently filed preliminary objections to the petition for review, alleging that Thomas failed to state a valid cause of action in mandamus.2 The Board asserted, inter alia, that Section 34.1(a)(3) is applicable to Thomas, and that it lacked jurisdiction to act on Thomas’ application because he was not eligible for parole due to his failure to serve in the prerelease center, as required by Section 34.1(a)(3). In response, Thomas filed the motion for peremptory judgment and summary relief. This Court then listed the Board’s demurrer and Thomas’ motion for oral argument.

At the oral argument, the Board through its counsel withdrew its demurrer to the petition for review, conceding that Section 34.1(a)(3) enacted after the commutation of Thomas’ sentence may not be retroactively applied to his application for parole. Thus, Thomas’ motion for peremptory judgment and summary relief only remains for this Court’s disposition.

In a mandamus action, a motion for peremptory judgment or summary relief may be granted at any time after the filing of a petition for review, if the right of the movant thereto is clear. Pa. R.A.P. 1532(b); Pa. R.C.P. No. 1098. Mandamus is an extraordinary remedy which compels official performance of a ministerial act or mandatory duty. Pennsylvania Dental Ass’n v. Insurance Department, 512 Pa. 217, 516 A.2d 647 (1986). A writ of mandamus may be issued, only where there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and lack of any other appropriate and adequate remedy. Id. In an action in mandamus involving an administrative agency’s exercise of discretion, a court may only direct the agency to perform such discretionary act; it may not compel the agency to exercise the discretion in certain manner or reach a particular result. Id.

Under the Act, the Board has the power and the broad discretion to either grant or deny a prisoner’s parole application. Marshall v. Pennsylvania Board of Probation & Parole, 162 Pa.Cmwlth. 256, 638 A.2d 451 (1994). The Act, however, does not in any way restrict an inmate’s right to apply for parole once his or her minimum term of sentence has expired. Id. Nor does it grant the Board any discretion to refuse to consider a parole application. Id. Thus, this Court in Marshall granted the motion for summary relief in the mandamus action filed by the [796]*796inmate against the Board which refused to consider his parole application, and directed the Board to consider the application.

In the matter sub judice, the Board concedes that Section 34.1(a)(3) requiring the completion of service in the prerelease center to be eligible for parole may not be retroactively applied to Thomas. The Board stated during the oral argument that it was willing to consider and render a decision on Thomas’ application and comply with the procedures set forth in Section 21 of the Act before the 1995 amendment.

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Bluebook (online)
699 A.2d 792, 1997 Pa. Commw. LEXIS 354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mickens-thomas-v-commonwealth-board-of-probation-parole-pacommwct-1997.