Winklespecht v. Pennsylvania Board of Probation & Parole

813 A.2d 688, 571 Pa. 685, 2002 Pa. LEXIS 3117

• Court: Supreme Court of Pennsylvania
• Decided: December 31, 2002
• Docket: 57 MM 2001
• Status: Published

Opinions

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

Justice EAKIN.

Walter Winklespecht, a state prisoner, petitions this Court for writ of habeas corpus. Winklespecht challenges the Pennsylvania Board of Probation and Parole’s decision to deny him parole, and claims this denial violated the ex post facto clause of the United States Constitution. See U.S. Const. Art. I, § 10.

In 1988, Winklespecht was sentenced to 7-20 years imprisonment for rape and involuntary deviate sexual intercourse, and to a consecutive term of five years probation for aggravated assault. He was denied parole October 19, 1994, October 17, 1995, October 25, 1999, and October 23, 2000. The Board listed the following reasons for denial of parole in 1994 and 1995:

POOR PRISON ADJUSTMENT.

SUBSTANCE ABUSE.

HABITUAL OFFENDER.

ASSAULTIVE INSTANT OFFENSE.

VERY HIGH ASSAULTIVE BEHAVIOR POTENTIAL. VICTIM INJURY.

YOUR NEED FOR .... COUNSELING AND TREATMENT.

Notices Of Board Decision, 10/26/94 and 12/09/95.

The Board gave the following explanations for its denials in 1999 and 2000:

FOLLOWING AN INTERVIEW AND REVIEW OF YOUR FILE, THE PENNSYLVANIA BOARD OF PROBATION AND PAROLE HAS DETERMINED THAT THE MANDATES TO PROTECT THE SAFETY OF THE PUBLIC AND TO ASSIST IN THE FAIR ADMINISTRATION OF JUSTICE CANNOT BE ACHIEVED THROUGH YOUR RELEASE ON PAROLE. YOU ARE THEREFORE REFUSED PAROLE....

Notice Of Board Decision, 10/25/99 (emphasis added).

FOLLOWING AN INTERVIEW AND REVIEW OF YOUR FILE, THE PENNSYLVANIA BOARD OF PROBATION AND PAROLE HAS DETERMINED THAT THE FAIR ADMINISTRATION OF JUSTICE CANNOT BE ACHIEVED THROUGH YOUR RELEASE ON PAROLE.

Notice of Board Decision, 10/23/00 (emphasis added).

The emphasized language in the 1999 and 2000 notices is found in § 331.1 of the Parole Act, as revised in 1996:

§ 331.1. Public Policy as to parole

The parole system provides several benefits to the criminal justice system, including the provision of adequate supervision of the offender while protecting the public, the opportunity for the offender to become a useful member of society and the diversion of appropriate offenders from prison.. In providing these benefits to the criminal justice system, the board shall first and foremost seek to protect the safety of the public. In addition to this goal, the board shall address input by crime victims and assist in the fair administrabion of justice by ensuring the custody, control and treatment of paroled offenders.

61 P.S. § 331.1 (emphasis added).

With respect to policy, the prior version of the Act read: The value of parole as a disciplinary and corrective influence and process is hereby recognized, and it is declared to be the public policy of this Commonwealth that persons subject or sentenced to imprisonment for crime shall, on release therefrom, be subjected to a period of parole during which their rehabilitation, adjustment and restoration to social and economic life and activities shall be aided and facilitated by guidance and supervision under a competent and efficient parole administration, and to that end it is the intent of this act to create a uniform and exclusive system for the administration of parole in this Commonwealth.

Act 1941, Aug. 6, P.L. 861, § 1.

Following the most recent denial of parole, Winklespecht attempted to appeal to the Commonwealth Court by filing a petition for review. The court concluded he was seeking to appeal from an unappealable order, and dismissed the petition. Pursuant to this Court’s original jurisdiction, see 42 Pa.C.S. § 721(1), Winklespecht filed an application to file original process in this Court, and also filed his habeas corpus petition. We granted Winklespecht leave to file the petition, directed he receive appointed counsel, and ordered the parties to file briefs.¹

Winklespecht argues the changes in the Parole Act between the time of his crimes and his 1999 and 2000 parole applications unconstitutionally subjected him to an ex post facto law. He asserts such claim is cognizable under Pennsylvania’s habeas corpus statute, and that the proper venue for filing a habeas corpus petition is the court of common pleas in the county where the sentence was imposed.

This Court has not yet answered the question of whether habeas corpus is an available remedy for the denial of parole based on an ex post facto violation, nor have we determined the proper venue for seeking such relief. It is well settled, however, that a prisoner has no legitimate expectation of being paroled after serving the minimum sentence, Rogers v. Pennsylvania Bd. of Probation and Parole, 555 Pa. 285, 724 A.2d 319 (1999), and, due to the discretionary nature of the decision to deny parole, no right to appeal is available under the Administrative Agency Law, 2 Pa.C.S. § 101. See Rogers, at 321.

Relying on the rationale in Rogers, this Court, in Coady v. Vaughn, 564 Pa. 604, 770 A.2d 287 (2001), held that where a challenge to the denial of parole is not based on the exercise of the board’s discretion, but instead on the board’s application of new statutory requirements, an ex post facto challenge may be raised in an action for mandamus brought in the Commonwealth Court. Id., at 290. The availability of habeas corpus as a remedy was not discussed by the majority, presumably because the parties did not argue its application. Justice Castille, concurring in Coady, criticized the decision in Weaver v. Pennsylvania Bd. of Probation and Parole, 688 A.2d 766, 775 n. 17 (Pa.Cmwlth.1997) (constitutional challenge to denial of parole cannot properly be raised in habeas corpus proceeding), and noted, “there is a very strong argument that state habeas corpus review of the constitutional claim at issue here is not clearly foreclosed under this Court’s jurisprudence ...,” or by statute. Coady, at 294.

An ex post facto law is one which is “adopted after the complaining party committed the criminal acts and ‘inflicts a greater punishment than the law annexed to the crime, when committed.’ ” Coady, at 289 n. 2 (quoting California Dep’t. of Corrections v. Morales, 514 U.S. 499, 504-06, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995)).

One function of the Ex Post Facto Clause is to bar enactments which, by retroactive operation, increase the punishment for a crime after its commission. Retroactive changes in laws governing parole of prisoners, in some instances, may be violative of this precept. Whether retroactive application of a particular change in parole law respects the prohibition on ex post facto legislation is often a question of particular difficulty when the discretion vested in a parole board is taken into account.

Gamer v. Jones, 529 U.S. 244, 249-50, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000) (citations omitted).

Although Winklespecht couches his underlying claim as an ex post facto violation, clearly his punishment has not been increased. The rewording of 61 P.S. § 331.1 did not create a substantial risk that parole would be denied any more frequently than under the previous wording, nor did the addition of this language create a new offense or increase the penalty for an existing offense.² See Morales, at 506 n. 3, 115 S.Ct. 1597 (“the focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of ‘disadvantage,’ nor, ... on whether an amendment affects a prisoner’s ‘opportunity to take advantages of provisions for early release’.... ”). Although the language concerning “protecting] the safety of the public” and “assisting] in the fair administration of justice” was added to § 331.1 in 1996, these concepts are nothing new to the parole process and have always been underlying concerns. Both versions of § 331.1 leave the decision regarding the grant of parole within the discretion of the Board; the fact that some language was added in 1996, which clarified the policy underlying the parole process, does nothing that increases Winklespecht’s punishment. See Prater v. U.S. Parole Com., 802 F.2d 948, 952 (7th Cir.1986) (“If ... the Parole Commission takes a more jaundiced view of applications for parole, the ex post facto prohibition is not violated, even though a criminal’s punishment may end up being longer or harsher than he hoped when he committed the crime.”). Reordering of considerations for necessary decisions within an unchanged penalty do not rise to an ex post facto violation.

Therefore, Winklespecht’s claims do not raise an ex post facto issue.³ As Winklespecht has failed to articulate a true constitutional claim, no relief is due, and we leave for another day the question of the propriety of habeas corpus as a remedy.

The petition for writ of habeas corpus is hereby denied.

Justice CAPPY files a concurring opinion. Justice CASTILLE files a concurring opinion in which Justice Newman joins. Chief Justice ZAPPALA and Justice NIGRO concur in the result. Justice SAYLOR files a concurring and dissenting opinion.

1 . In his habeas petition, Winklespecht also argued that an intervening federal law, the Federal Violent Offenders Truth in Sentencing Act, 42 U.S.C. § 13703, and changes in unspecified Parole Board guidelines violated the ex post facto clause. Winklespecht does not raise these issues in his brief, focusing instead on his claims involving state statutory law; therefore, we deem these other claims abandoned and will not address them.

2 . An identical ex post facto challenge to the rewording of 61 P.S. § 331.1 was raised by petition for writ of mandamus in Finnegan v. Pennsylvania Board of Probation and Parole, 156 MAP 2001.

3 . Winklespecht makes the same claim with respect to an addition in the October 23, 2000 Notice of Board Decision, which provides a sex offender evaluation be available at the time of Winklespecht’s next review. See 42 Pa.C.S. § 9795.4(g) (Board may request assessment of sexually violent predator be conducted and report be provided to Board prior to considering offender or sexually violent predator for parole). The essence of Winklespecht’s claim, in the context of an ex post facto argument, is that permitting the Board to request a sex offender evaluation results in the imposition of greater punishment than at the time he was convicted. The issue of whether this unconstitutionally increases the penalties to which a defendant is exposed is currently before this Court in Commonwealth v. Williams, 61 WAP 2001 (argued April 8, 2002).