Opinion
No. 98 M.D. 2013
02-27-2014
Michael J. Montroy, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, 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 in the nature of a demurrer and the motion to dismiss for want of appellate jurisdiction filed by the Pennsylvania Board of Probation and Parole (Board) in response to Michael J. Montroy's petition for review of the Board's January 22, 2013, decision denying Montroy re-parole. We grant the Board's preliminary objections and dismiss Montroy's petition for review in this court's original jurisdiction and grant the Board's motion to dismiss for lack of appellate jurisdiction.
Montroy is currently an inmate at the State Correctional Institution at Pittsburgh (SCI-Pittsburgh), serving a sentence of 1 year and 8 months to 6 years and 4 months for receiving stolen property, unauthorized use of automobiles and other vehicles, and simple assault. Montroy's original maximum sentence date was January 17, 2016. In a March 29, 2011 order, the Board paroled Montroy effective June 13, 2011, and released him thereafter to Renewal, a community corrections center in Pittsburgh.
In the Board's March 29, 2011, parole order, Montroy's maximum sentence date was changed to February 8, 2016.
On August 9, 2011, Montroy tested positive for cocaine use and was subsequently provided with a written warning and instructions to report to Penn Pavilion on or before 8:00 p.m. that evening for an inpatient treatment program. The Board notified Montroy that if he failed to report, or left Penn Pavilion for any reason other than successful discharge, he would have to report to the Board's Beaver Falls sub-office by 10:00 a.m. the next day. The Board warned Montroy that failure to comply would be a parole violation.
Montroy did not report to Penn Pavilion or to the Beaver Falls sub-office as instructed. On August 10, 2011, the Board issued a warrant to commit and detain Montroy for parole violations. On that same date, parole staff arrested Montroy and returned him to SCI-Pittsburgh. On August 11, 2011, Montroy waived his right to a violation hearing.
On September 22, 2011, the Board recommitted Montroy as a technical parole violator, noted that he was not eligible for re-parole review until August 10, 2012, and kept his maximum sentence date as February 8, 2016. On October 28, 2011, Montroy filed an administrative appeal of the Board's September 22, 2011, decision. Montroy alleged, among other things, that on August 12, 2011, he submitted a letter to the parole office at SCI-Pittsburgh withdrawing his hearing waiver of August 11, 2011.
On January 27, 2012, the Board remanded Montroy's case for an additional hearing on the specific issue of whether Montroy withdrew his waiver. On February 17, 2012, Montroy signed a second waiver, waiving all claims to challenge the Board's decision, and adding that he wished "to forego the evidentiary hearing to determine my withdrawal of waiver. I submit my previous waiver and admit to those violations." (Montroy Waiver, 2/17/12, at 1.) After Montroy's waiver, the Board, by decision mailed April 10, 2012, affirmed its September 22, 2011, order.
On August 21, 2012, the Board issued an order modifying Montroy's maximum sentence date to February 2, 2016. Subsequently, the Board interviewed Montroy and reviewed his file for consideration of re-parole. On January 22, 2013, the Board issued a decision denying Montroy re-parole. On February 28, 2013, Montroy appealed the Board's January 22, 2013, decision to this court.
The Board denied Montroy re-parole for the following reasons:
[1] Your risk and needs assessment indicating your level of risk to the community.(Board's decision, 1/22/13, at 1.)
[2] Your prior unsatisfactory parole supervision history.
[3] Reports, evaluations and assessments/level of risk indicates your risk to the community.
[4] Your failure to demonstrate motivation for success.
[5] Your minimization/denial of the nature and circumstances of the offense(s) committed.
[6] Your lack of remorse for the offense(s) committed.
On April 16, 2013, this court ordered Montroy's appeal to "be treated as a petition for review addressed to this [c]ourt's original jurisdiction and appellate." (Cmwlth. Ct. Order, 4/16/13, at 1.)
In Montroy's petition for review, he contends that the Board's January 22, 2013, decision denying him re-parole violated of section 6138(d)(3) of the Prison and Parole Code (Code), Act of August 11, 2009, P.L. 147, as amended, 61 Pa. C.S. §6138(d)(3). Montroy also challenges the reasons the Board provided him for denying re-parole.
On May 24, 2013, the Board filed preliminary objections in the nature of a demurrer, to the extent that the petition for review was in this court's original jurisdiction, and a motion to dismiss for want of jurisdiction, to the extent the petition for review was in this court's appellate jurisdiction.
Initially, the Board requests that we grant its preliminary objections. The Board contends that Montroy is not entitled to automatic re-parole pursuant to section 6138(d)(3) of the Code, 61 Pa. C.S. §6138(d)(3), because that section was not effective until January 2, 2013, and Montroy was recommitted over 15 months before the effective date of the statute. We agree.
This court issued an order on June 18, 2013, overruling the Board's preliminary objections to service and lack of verification. (Cmwlth. Ct. Order, 6/18/13, at 1.) In ruling on preliminary objections in the nature of a demurrer, this court 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). Pa. R.C.P. No. 1028(a)(4) states:
(a) [p]reliminary objections may be filed by any party to any pleading and are limited to the following grounds:
* * *
A writ of mandamus is an extraordinary remedy. Taglienti v. Department of Corrections, 806 A.2d 988, 991 (Pa. Cmwlth. 2002). "This [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).(4) legal insufficiency of a pleading (demurrer).
Section 6138(d)(3)(i) of the Code provides in pertinent part:
(d) Recommitment to correctional facility. -- A technical violator recommitted to a State correctional institution or a contracted county jail under subsection (c) shall be recommitted as follows:61 Pa. C.S. §6138(d)(3)(i). The effective date of the amendments to section 6138(d) of the Code was January 2, 2013. The Board recommitted Montroy as a technical parole violator on September 22, 2011, 15 months before the effective date of the automatic re-parole provision. Thus, Montroy lacks a clear legal right to automatic re-parole.
* * *
(3) Except as set forth in paragraph (4) or (5), the parolee shall be recommitted for one of the following periods, at which time the parolee shall automatically be reparoled without further action by the board:
(i) For the first recommitment under this subsection, a maximum period of six months.
"A statute shall be construed prospectively unless the legislature clearly intended otherwise." Sher v. Berks County Board of Assessment Appeals, 940 A.2d 629, 635 (Pa. Cmwlth. 2008). Here, the legislature was clear on the effective date of the statute. --------
Similarly, the Board lacks a clear legal duty to apply the automatic re-parole provision to Montroy's recommitment as a technical parole violator because Montroy was recommitted before the provision's effective date. Thus, a writ of mandamus may not be issued in this case. Accordingly, we grant the Board's demurrer and dismiss Montroy's petition for review in this court's original jurisdiction.
Finally, the Board contends that this court does not have appellate jurisdiction because there has not been an adjudication by the Board. We agree.
Montroy is challenging the Board's January 22, 2013, refusal to re-parole him, not the September 22, 2011, decision to recommit Montroy as a technical parole violator. In order for this court to have appellate jurisdiction over this claim, the Board must have issued an adjudication. The law is clear that decisions to parole or re-parole an inmate are not adjudications subject to appellate review. Rogers v. Pennsylvania Board of Probation and Parole, 555 Pa. 285, 292-93, 724 A.2d 319, 323 (1999). Therefore, Montroy's claim in this court's appellate jurisdiction must be dismissed for lack of jurisdiction.
Accordingly, we grant the Board's preliminary objections and dismiss Montroy's petition for review in this court's original jurisdiction; we further grant the Board's motion to dismiss for lack of appellate jurisdiction.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 27th day of February, 2014, we hereby grant the preliminary objections of the Pennsylvania Board of Probation and Parole and dismiss Michael J. Montroy's petition for review in this court's original jurisdiction. We further grant the Board's motion to dismiss for lack of appellate jurisdiction.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge