Opinion
No. 575 M.D. 2011
12-02-2014
Jeffrey J. Tillman, Petitioner v. Pennsylvania Board of Probation and Parole, et al. and The Pennsylvania Department of Corrections, et al., Respondents
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Before this Court are the motion for judgment on the pleadings of the Pennsylvania Department of Corrections (DOC) and the application for summary relief of the Pennsylvania Board of Probation and Parole (Board) to Jeffrey J. Tillman's (Tillman) amended petition for a writ of mandamus (amended petition) in this Court's original jurisdiction.
I. Background.
Tillman has been incarcerated at the State Correctional Institution - Houtzdale (SCI-Houtzdale). On November 13, 2007, Tillman entered a plea of nolo contendere to one count of indecent assault by forcible compulsion, a misdemeanor of the first degree, and one count of burglary, a felony of the second degree. With regard to the indecent assault charge, the parties had agreed that in exchange for Tillman's plea, Tillman would receive some court determined period of probation to run consecutively to the sentence imposed for burglary. The Court of Common Pleas of Lehigh County (sentencing court) sentenced Tillman to a term of two to ten years for burglary and two years probation for the indecent assault to run consecutively to the burglary sentence.
A plea of nolo contendere is effectually the equivalent of a plea of guilty. The only difference is that a defendant cannot plead nolo contendere without the leave of court, and the plea may not be used against the defendant as an admission of guilt in a subsequent civil suit. Commonwealth v. Smith, 30 A.2d 339 (Pa. Super. 1943). In exchange for Tillman's plea, the Commonwealth withdrew charges of rape, involuntary deviate sexual intercourse, sexual assault, and indecent assault (lack of consent).
Tillman appealed to the Pennsylvania Superior Court and attacked the sentence on the indecent assault charge. Tillman contended that the sentence for indecent assault by forcible compulsion was illegal because under Section 3502(d) of the Crimes Code, 18 Pa.C.S. §3502(d), he could not be sentenced both for burglary and for the offense which it was his intent to commit after the burglarious entry. The Superior Court granted the appeal and vacated the sentence for indecent assault by forcible compulsion:
Section 3502(d) of the Crimes Code, 18 Pa.C.S. §3502(d), provides, "[a] person may not be sentenced both for burglary and for the offense which it was his intent to commit after the burglarious entry or for an attempt to commit that offense, unless the additional offense constitutes a felony of the first or second degree."
Here, Appellant [Tillman] pled guilty to one count of F-2 burglary, as well as one count of indecent assault by forcible compulsion, which was graded as a misdemeanor of the first degree. . . . Although it was permissible for Appellant [Tillman] to plead guilty to both crimes, it was not permissible for the trial court to
sentence Appellant [Tillman] on both the burglary and indecent assault charges, where the indecent assault is the offense which Appellant [Tillman] intended to commit once inside the garage. . . . Therefore, we find it necessary to vacate the sentence for indecent assault by forcible compulsion. However, in light of the fact that the trial court imposed the statutory maximum sentence for F-2 burglary, we find it unnecessary to remand for resentencing. . . . (Footnotes and citation omitted) (Emphasis added).Commonwealth v. Tillman, (Pa. Super., No. 475 EDA, filed June 3, 2009), Slip Opinion at 8.
II. Amended Petition.
A. Parole.
Tillman alleges that the Board illegally required him to receive sex offender counseling and treatment and required him to meet more stringent standards for parole because he was erroneously characterized as a violent offender. Tillman also alleges the Board unlawfully denied him parole because of his failure to complete the sex offender treatment program. Tillman maintains he was not a sex offender once his indecent assault sentence was vacated.
Specifically, Tillman alleges:
8) Petitioner [Tillman] has been interviewed twice for parole and denied twice for the reasons stated in the Board's parole decision order. . . .
. . . .
11) Parole Board is required by law to comply with 42 Pa.C.S. . . § 9781.1(a) . . . and §9792. . . . None of which the Petitioner [Tillman] qualifies for since overturning his misdemeanor assault . . . four months into his sentence (4/21/08) violating his 5th, 8th, and 14th Amendment rights.
12) Parole Board is required to comply with the Court ordered and accepted nolo contendre [sic] between the Petitioner [Tillman] and the Commonwealth of Pennsylvania and cannot require Petitioner [Tillman] to admit guilt (or hold it against him in his request for parole when he does not) by accepting responsibility for his remaining conviction . . . and specifically, not for the vacated conviction. . . . And more importantly, the Commonwealth agreed that the Petitioner [Tillman] would not have to admit guilt in return for Petitioner's [Tillman] agreement to suffer a specified punishment. Now the Commonwealth through its agencies, the PBPP [Board] and D.O.C., wish to extend Petitioner's [Tillman] specified punishment because Petitioner [Tillman] will not admit guilt, which is unfair and a violation of the plea agreement, as well as his 5th, 14th, and 8th Amendment rights.Amended Petition for Writ of Mandamus, February 27, 2012, Paragraph Nos. 8, 11-13, and 15-16 at 2-5.
13) Parole Board is aware of the Department of Corrections (DOC) policy on inmates refusing Parole Board recommended programs, which are interpreted as mandatory programs by the D.O.C. staff and Parole Boards' [sic] members and staff, and knew that Petitioner [Tillman] would not receive their recommendation. . . .
. . . .
15) The Parole Board was notified within 30 days of direct appeal court Order vacating his indecent assault conviction . . . and in deliberate non-compliance . . . with 42 Pa. C. [sic] § 9781(a) continues to subject Petitioner [Tillman] to a mandatory program requirement ilegally [sic]. . . . The imposition of the sex offender treatment program as a condition of Parole . . . after the vacation of the conviction for the sex offense . . . for the underlying crime is a judgment of sentence. . . .
16) Parole Board deliberately, unlawfully, aritraaily [sic] and capriciously misrepresented through its staff and agents that the Petitioner [Tillman] had no right to appeal their [sic] decision, in violation of 'laws' . . . of the Prison and Parole Code and 37 Pa.Code §73.1 violating Parolee's [Tillman] right to due process and equal protection under the law, 5th, 14th Amendments.
Tillman asserts that he was advised not to attempt to participate in various programs, such as boot camp and pre-release. Tillman also asserts that the Board labeled him a "violent offender" when he alleges he no longer has a conviction for a violent crime which unfairly prejudiced the Board against him.
Tillman seeks a writ of mandamus to require the Board to remove the illegal sex offender counseling and treatment requirements, sex offender label, and violent offender label from all of his inmate records and asks this Court to reverse an earlier decision which denied him parole.
B. DOC.
With respect to DOC, Tillman now alleges:
Tillman also alleged that DOC violated his rights concerning double jeopardy, that DOC violated its Code of Ethics, that DOC violated the DNA Detection of Sexual and Violent Offenders Act, 44 Pa.C.S. §§2301-2336, and that DOC violated the federal DNA Identification Act of 1994, 42 U.S.C. §14132(d)(2)(A).
DOC preliminarily objected in the nature of a demurrer and asserted that Tillman was not entitled to any relief based on any alleged violations of DOC's Code of Ethics, Tillman did not make out a prima facie double jeopardy claim, and that DOC had no duty under the Pennsylvania and federal DNA acts to request that Tillman's samples in the federal and Pennsylvania DNA databases be removed.
This Court sustained DOC's preliminary objections but also determined:
While this Court sustains these preliminary objections, because DOC does not address Tillman's claim that DOC improperly labeled him as a sex offender when he allegedly did not commit an offense which required placement in such a program and that such placement violated his right to due process and subjected him to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution, DOC is directed to file an answer to paragraph numbers one through four of the portion of Tillman's amended petition which is addressed to DOC and which were not disposed of by DOC's preliminary objections.
1) The Department of Corrections, (DOC) was notified within 30 days of Petitioner's [Tillman] Direct Appeal Order vacating his indecent assault conviction . . . pursuant to 61 Pa. S.C.A. [sic] §6134(a), and in deliberate non-compliance . . . with 42 Pa. C.S. §9781.1(a) continues to subject Petitioner [Tillman] to a mandatory program requirement illegally. . . . The imposition of the sex offender treatment program as a condition of parole . . . after the vacation of the conviction for the sex offense . . . for the underlying crime is a judgement [sic] of sentence. 'Parole is legal equivalent of imprisonment, in that both constitutes [sic] judgment on a conviction' and in this case, Judgement [sic] on a vacation conviction . . . violating his 5th, 14th, and 8th Amendment rights.
2) The Department of Corrections (DOC) was notified within 30 days of Petitioner's [Tillman] Pa. R.A.P. § [sic] 1925(a) court order vacating his indecent assault conviction . . . pursuant to 61 Pa.S.C.A. [sic] §6134(a), and in deliberate non-compliance . . . with 42 Pa. C.§.S [sic] 9781.1(a) continues to subject Petitioner [Tillman] to a mandatory program requirement illegally . . . . The imposition of the sex offender treatment program as a condition of parole . . . after the vacation of the conviction for the sex offense . . . for the underlying crime is a judgment of sentence. 'Parole is legal equivalent of imprisonment, in that both constitute judgment on a conviction' and in this case, judgment on a
vacated conviction . . . violating his 5th, 14th, and 8th Amendment rights.Amended Petition for Writ of Mandamus, February 27, 2012, Paragraph Nos. 1-4 at 11-13.
3) The DOC deliberately, unlawfully, arbitrarily and capriciously continues to label Petitioner [Tillman] a 'violent offender'. . . after his violent crime conviction was overturned on April 21, 2008 . . . and again on June 3, 2009 . . . and he has no conviction now, for a violent crime nor has he ever been convicted of a violent crime . . . except temporarily for four months which was vacated, and he has no violent crime convictions and pursuant to 42 Pa. C.S.A. [sic] §9714, 18 Pa. C.S. § 3301(a) the only burglary offense that is a violent crime the Petitioner [Tillman] has no conviction for . . . violating his 5th, 14th, and 8th Amendment rights.
4) The DOC deliberately, unlawfully, arbitrarily, and capriciously continues to label Petitioner [Tillman] a 'violent offender'. . . unfairly prejudicing the Petitioner [Tillman] by subjecting him to the parole requirement of a three-person affirmative vote in order to get paroled which is a statute [sic] requirement for violent offenders only. . . . (Citations omitted).
III. Application for Summary Relief.
Now before this Court, the Board applies for summary relief and asserts:
10. Mandamus is not the proper avenue for presenting a challenge to Respondent's [Board] discretionary decision to refuse parole. . . .
11. To the extent that Tillman claims a violation of his Fourteenth Amendment due process rights, there is no protected liberty interest in the granting of parole. . . .
12. Furthermore, to the extent Tillman alleges that his rights are being violated by being labeled a sex offender, this Court held that an inmate has no liberty interest in not being labeled a sex offender or in not being required to participate in sex offender programming. . . .Application for Summary Relief, November 6, 2013, Paragraph Nos. 10-13, 15, and 17-18 at 3-5.
13. Even so, as Tillman has already been convicted of a sex offense, he has no right to any further procedural due process before he can be labeled as a sex offender. . . .
. . . .
15. To the extent Petitioner [Tillman] is claiming the Board is violating his rights under the Ex Post Facto [clause] by applying 42 Pa.C.S. §9718.1 to him, the fact that the Board interviewed him for parole and provided him with a decision as to the reason it refused him parole proves that the Board is not retroactively applying § 9718.1 of the Sentencing Code to him. . . .
. . . .
17. As such, Petitioner [Tillman] has failed to show that (1) he has a clear right to the relief he requests, and (2) a corresponding duty in the governmental body. . . .
18. In lieu of these pleaded facts, the right of Respondent Board to judgment in its favor is both clear and appropriate. (Citations omitted)
In his answer to the application for summary relief, Tillman conceded that he was no longer asserting claims based on the 5th or 8th Amendments to the United States Constitution.
The Board contends that it did not violate Tillman's due process rights when it denied parole, in part, for his failure to complete recommended programming when Tillman pled nolo contendere to the crime of indecent assault and then refused to comply with DOC's recommended sexual offender treatment program.
"An application for summary relief is properly evaluated according to the standards for summary judgment." McGarry v. Pennsylvania Board of Probation and Parole, 819 A.2d 1211, 1214 n.7 (Pa. Cmwlth. 2003) (citing Gartner v. Pennsylvania Board of Probation and Parole, 469 A.2d 697 (Pa. Cmwlth. 1983)). "In deciding a motion for summary judgment, an application for summary relief may be granted if a party's right to judgment is clear . . . and no issues of material fact are in dispute." McGarry, 819 A.2d at 1214 n.7. (citation omitted).
Rule 1532(b) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 1532(b), provides, "At any time after the filing of a petition for review in an appellate or original jurisdiction matter the court may on application enter judgment if the right of the applicant thereto is clear."
Mandamus is an extraordinary writ designed to compel performance of a ministerial act or mandatory duty where there exists a clear right in the plaintiff, a corresponding duty in the defendant and want of any other adequate and appropriate remedy. Princeton Sportswear Corp. v. Redevelopment Authority of City of Philadelphia, 333 A.2d 473 (Pa. 1975).
IV. DOC's Motion for Judgment on the Pleadings.
DOC moves for judgment on the pleadings on the basis that Tillman failed to exhaust his administrative remedies through the inmate grievance process prior to filing suit, that Tillman has no due process claim because he has no liberty interest in not being labeled a sex offender and in not being required to participate in sex offender programming, and even if this Court determines that an inmate does have a liberty interest in not being labeled a sex offender and in not being required to participate in sex offender programming, Tillman does not have that right because he was convicted of a sexual offense.
In his answer to the motion, Tillman denies allegations related to the exhaustion of administrative remedies and due process but concedes that he has no 8th Amendment claim.
A motion for a judgment on the pleadings will be granted only where, on the facts averred, the law states with certainty that no recovery is possible. Piehl v. City of Philadelphia, 987 A.2d 146, 154 (Pa. 2009).
V. Common Issues.
A. Violent Offender.
Tillman argues that he was designated as a "violent offender" even though he was not convicted of any of the crimes enumerated in Section 9714 of the Judicial Code, 42 Pa.C.S. §9714. The Board denied that Tillman was inaccurately labeled a violent offender in its answer. The Board and DOC may have different criteria for determining whether an inmate is classified as a violent offender. DOC's classification of an inmate as a violent offender could result in the recommendation that the inmate participate in certain programs. The Board in determining whether to grant parole may look at the circumstances of the offense committed by the inmate rather than just the conviction. Tillman argues that he was never convicted of a violent offense because his sentence for indecent assault by forcible compulsion was vacated. While the sentence was vacated, Tillman was still convicted of the crime. Clearly, indecent assault by forcible compulsion is a violent crime. Although it is not one of the enumerated crimes listed in 42 Pa.C.S. §9714, that section of the Judicial Code addresses the issue of mandatory sentences and not classification by DOC or the Board. Therefore, even if DOC and/or the Board characterized Tillman as a violent offender, this Court finds that mandamus does not lie.
Section 9714(g) of the Judicial Code, 42 Pa.C.S. §9714(g), provides in pertinent part:
As used in this section, the term 'crime of violence' means murder of the third degree, voluntary manslaughter, manslaughter of a law enforcement officer as defined in 18 Pa.C.S. § 2507(c) or (d) (relating to criminal homicide of law enforcement officer), murder of the third degree involving an unborn child as defined in 18 Pa.C.S. § 2604(c) (relating to murder of unborn child), aggravated assault of an unborn child as defined in 18 Pa.C.S. § 2606 (relating to aggravated assault of an unborn child), aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) or (2) (relating to aggravated assault), assault of law enforcement officer as defined in 18 Pa.C.S. §2702.1 (relating to assault of law enforcement officer), use of weapons of mass destruction as defined in 18 Pa.C.S. §2716(b) (relating to weapons of mass destruction), terrorism as defined in 18 Pa.C.S. § 2717(b)(2) (relating to terrorism), trafficking of persons when the offense is graded as a felony of the first degree as provided in 18 Pa.C.S. § 3002 (relating to trafficking of persons), rape, involuntary deviate sexual intercourse, aggravated indecent assault, incest, sexual assault, arson as defined in 18 Pa.C.S. § 3301(a) (relating to arson and related offenses), ecoterrorism as classified in 18 Pa.C.S. § 3311(b)((3) (relating to ecoterrorism), kidnapping, burglary as defined in 18 Pa.C.S. § 3502(a)(1) (relating to burglary), robbery as defined in 18 Pa.C.S. § 3701(a)(1)(i), (ii) or (iii) (relating to robbery), or robbery of a motor vehicle, drug delivery resulting in death as defined in 18 Pa.C.S. § 2506(a) (relating to drug delivery resulting in death), or criminal attempt, criminal conspiracy or criminal solicitation to commit murder or any of the offenses listed above, or an equivalent crime under the laws of this Commonwealth in effect at the time of the commission of that offense or an equivalent crime in another jurisdiction.
In its answer DOC states that Tillman is no longer characterized as a violent offender under DOC's Overt Violent Risk Typology. The Overt Violent Risk Typology is a classification system DOC uses. DOC does not release the particulars of the Typology to the public.
B. Due Process.
Next, the Board argues that to the extent Tillman alleges that it violated the due process clause when it denied him parole, in part, for failing to complete recommended programming and classified him as a sex offender, Tillman has failed to state a claim for mandamus relief.
Similarly, DOC argues that judgment on the pleadings should be entered in its favor because Tillman's criminal convictions for offenses that have a sexual component strip him of any liberty interest he has in avoiding sex offender treatment.
In Renchenski v. Williams, 622 F.3d 315 (3d Cir. 2010), the United States Court of Appeals for the Third Circuit addressed the issue of whether forced participation in sexual offender treatment violated one's constitutional rights. Charles Renchenski (Renchenski) was serving a life sentence at the State Correctional Institution in Coal Township, Pennsylvania, without the possibility for parole for murder in the first degree. DOC classified Renchenski as a sex offender and recommended his enrollment in the Sex Offender Treatment Program. Renchenski filed a 42 U.S.C. §1983 action and alleged that his forced participation in the sex offender treatment program violated his constitutional right to due process, his right against self-incrimination, and his right to a trial by jury. Renchenski was convicted of murdering a woman but was not charged with or convicted of sexual assault. When Renchenski's complaints to a prison counselor about his loss of single cell status went unanswered, Renchenski called the counselor "slothful." According to Renchenski, the counselor retaliated by classifying him as a sex offender and enrolled him in programs such as sex offender orientation, sex offender core, and sex offender maintenance. Renchenski, 622 F.3d at 320-321.
DOC and related defendants moved to dismiss Renchenski's complaint. The District Court converted the motion to dismiss to a motion for summary judgment and granted the motion. With respect to Renchenski's due process claim, the District Court determined that Renchenski presented no evidence that he was forced to undergo involuntary treatment and that he had neither an independent liberty interest nor a state-created liberty interest with respect to participation in sex offender treatment programs. Renchenski, 622 F.3d at 323-324.
On appeal to the Third Circuit, Renchenski argued with respect to his due process claim that the stigmatizing consequences of being labeled a sex offender, when paired with mandated behavioral modification therapy, constituted the type of deprivation of liberty that required procedural protections. Renchenski, 622 F.3d at 325. The Third Circuit noted that "only after a prisoner has been afforded due process may sex offender conditions be imposed on an inmate who has not been convicted of a sexual offense." Renchenski, 622 F.3d at 326. The Third Circuit held that in order to provide effective due process an inmate who was not convicted of a sexual offense and was recommended for sex offender treatment programs must receive written notice that authorities are considering classifying him as a sex offender and enrolling him in sex offender treatment programs, a hearing with evidence presented by both sides, an opportunity to present witnesses and cross-examine witnesses, administration of the hearing by an independent decision maker, a written statement by the decision maker as to the evidence relied upon and the reasons for the classification, and effective notice of all of these protections. Renchenski, 622 F.3d at 331.
Before comparing Renchenski to the present case, this Court
Courts of this Commonwealth are not required to follow federal courts on federal questions let alone on questions involving state law. There is no hierarchical arrangement between state courts and federal courts that exercise jurisdiction within that state. Under the federal system, the states possess sovereignty concurrent with that of the federal government.Weaver v. Pennsylvania Board of Probation and Parole, 688 A.2d 766, 772 n.11 (Pa. Cmwlth. 1997).
Prior to Renchenski, this Court in Wilson v. Pennsylvania Board of Probation and Parole, 942 A.2d 270 (Pa. Cmwlth. 2008), addressed a similar situation. In Wilson, Todd Wilson (Wilson) was convicted of a drug offense. He was originally also charged with corruption of minors, which was later withdrawn. Upon his arrival at the State Correctional Institution Houtzdale, it was determined that Wilson needed to complete the sex offender treatment program. Wilson did not and was denied parole. Wilson in a petition for mandamus filed against DOC and the Board argued that if he participated in the treatment program, he would be forced to admit guilt for an offense for which he was not convicted. Wilson, 942 A.2d at 272. With respect to Wilson's due process claim, this Court held that an inmate in a state correctional institution has no liberty interest in not being labeled a sex offender or in not being required to participate in sex offender programming. Wilson, 942 A.2d at 273.
This Court is not bound to follow Renchenski. Based on Wilson, this Court concludes that Tillman does not possess any liberty interest such that he is required to receive due process prior to his placement in a sex offender treatment program.
Assuming arguendo that this Court does follow Renchenski, Tillman's situation is clearly distinguishable. While Renchenski was convicted of murder and nothing else, Tillman waived his right to a jury trial and pled nolo contendere to burglary and indecent assault by forcible compulsion. Tillman was effectively convicted of a sexual offense though his sentence for that offense was vacated. Further, the conviction for burglary contained a sexual element as burglary is defined as "[a] person is guilty of burglary if enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter." (Emphasis added.) 18 Pa.C.S. §3502. Tillman did not contend that he did not enter the victim's garage with the intent to commit indecent assault by forcible compulsion. Had he not intended to do so, he would not have been convicted of burglary. While Renchenski was convicted of a crime that had no related sexual component, that is not the case with Tillman. Consequently, Renchenski does not apply.
Indecent Assault by Forcible Compulsion is defined as "A person is guilty of indecent assault if the person has indecent contact with the complainant, caused the complainant to have indecent contact with the person or intentionally causes the complainant to come into contact with seminal fluid, urine or feces for the purpose of arousing sexual desire in the person or the complainant and: . . . . (2) the person does so by forcible compulsion." 18 Pa.C.S. §3126(a)(2).
"Indecent Contact" is defined as "[a]ny touching of the sexual or other intimate parts of the person for purposes of arousing or gratifying sexual desire, in any person." 18 Pa.C.S. §3101.
"Forcible compulsion" is defined as "[c]ompulsion by use of physical, intellectual, moral, emotional or psychological force, either express or implied. The term includes, but is not limited to, compulsion resulting in another person's death, whether the death occurred before, during or after sexual intercourse." 18 Pa.C.S. §3101.
It should be noted that the sentencing court required Tillman to undergo sexual offender treatment as a condition of parole.
This Court agrees with the Board and DOC that they did not deny Tillman his right to due process.
C. Application of 42 Pa.C.S. §9718.1.
Tillman makes the claim that the Board applied Section 9718.1 of the Judicial Code, 42 Pa.C.S. §9718.1 to him and placed him in a sex offender treatment program for sexually violent predators. While it is true that Tillman did not meet the criteria of Section 9718.1, the Board argues that Tillman has failed to state a claim for which mandamus relief will be granted because he has not established that he was characterized as a sexually violent offender. Section 9718.1 provides that an individual convicted of various sexual crimes against minors shall not be eligible for parole unless he has completed the designated program. Tillman did not complete the designated program. However, Tillman was eligible for parole twice. He would not have been eligible for parole if he was classified under Section 9718.1 because he did not complete the program. The Board argues that because Tillman has been considered for parole twice even though he has not completed the program, Section 9718.1 was not applied to him. Although Tillman argues that DOC and the Board have undertaken a de facto expansion of Section 9718.1, this Court is satisfied that the Board has established that Tillman has failed to set forth a claim for mandamus relief on this point. Further, the record is clear that DOC has not applied 42 Pa.C.S. §9718.1(a) to him as the sentencing court ordered him to receive sex offender treatment.
Section 9718.1(a) of the Judicial Code, 42 Pa.C.S. §9718.1(a), provides:
(a) General rule.—A person, including an offender designated as a 'sexually violent predator' as defined in section 9799.12 (relating to definitions), shall attend and participate in a Department of Corrections [sic] program of counseling or therapy designed for incarcerated sex offenders if the person is incarcerated in a State institution for any of the following provisions under 18 Pa.C.S. (relating to crimes and offenses):
(1) Any of the offenses enumerated in Chapter 31 (relating to sexual offenses) if the offense involved a minor under 18 years of age.
(2) Section 4304 (relating to endangering welfare of children) if the offense involved sexual contact with the victim.
(3) Section 6301 (relating to corruption of minors) if the offense involved sexual contact with the victim.
(4) Open lewdness, as defined in section 5901 (relating to open lewdness) if the offense involved a minor under 18 years of age.
(5) Prostitution, as defined in section 5902 (relating to prostitution and related offenses), if the offense involved a minor under 18 years of age.
(6) Obscene and other sexual materials and performances, as defined in section 5903 (relating to obscene and other sexual materials and performances), if the offense involved a minor under 18 years of age.
(7) Sexual abuse of children, as defined in section 6312 (relating to sexual abuse of children).
(8) Section 6318 (relating to unlawful contact with minor).
(9) Section 6320 (relating to sexual exploitation of children).
(10) Section 4302 (relating to incest) if the offense involved a minor under 18 years of age.
(11) An attempt or solicitation to commit any of the offenses listed in this subsection.
VI. Distinct Issues -Right to Parole.
The Board submits that its decision to deny Tillman parole, which was based in part on his failure to participate in and complete recommended institutional programming did not violate his rights to due process.
The Board notes that it is axiomatic that a prisoner in the Pennsylvania state prison system does not have an absolute right to parole after the expiration of his minimum sentence. See Finnegan v. Pennsylvania Board of Probation and Parole, 838 A.2d 684 (Pa. 2003). Further, the Board states that it has broad discretion in parole matters and that one of the few restrictions on its discretionary authority is that it must provide a brief statement of reasons for the action taken. See Hollawell v. Pennsylvania Board of Probation and Parole, 701 A.2d 290 (Pa. Cmwlth. 1997).
Here, the Board informed Tillman that he was denied parole in a decision recorded on April 22, 2011, because of his need to participate in and complete additional institutional programs, DOC's negative recommendation, and his refusal to accept responsibility for the offenses committed. The Board complied with the requirements of notice to Tillman.
Further, there is no constitutionally protected liberty interest or right to parole:
As this Court has previously stated, 'parole is nothing more than a possibility, and if granted, it merely constitutes a favor given by the state, as a matter of grace and mercy, to a prisoner who has demonstrated a probability of his or her ability to function as a law-abiding citizen in society. . . . Accordingly, a prisoner has no constitutionally protected liberty interest in being released from confinement prior to the expiration of his maximum term of sentence. (Citations omitted).Evans v. Pennsylvania Board of Probation and Parole, 820 A.2d 904 (Pa. Cmwlth. 2003).
Additionally, a court is not authorized by the due process clause to "second-guess parole boards and the requirements of substantive due process are met if there is some basis for the challenged decision." Cody v. Vaughn, 251 F.3d 480 (3d Cir. 2001). This Court finds that Tillman was not deprived of his right to due process.
This Court need not address DOC's contention regarding the exhaustion of administrative remedies.
VII. Disposition.
This Court grants the Board's application for summary relief. This Court grants DOC's motion for judgment on the pleadings.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 2nd day of December, 2014, the application for summary relief of the Pennsylvania Board of Probation and Parole is granted. The motion for judgment on the pleadings of the Pennsylvania Department of Corrections is granted.
/s/_________
BERNARD L. McGINLEY, Judge BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
CONCURRING AND DISSENTING OPINION BY SENIOR JUDGE FRIEDMAN FILED: December 2, 2014
Because I would conclude, in accordance with Renchenski v. Williams, 622 F.3d 315, 320 (3d Cir. 2010), that Jeffrey J. Tillman, who neither pled guilty nor was found guilty of a sex offense, is entitled to a hearing before sex offender conditions can be imposed on him, I respectfully dissent, in part.
In this case, Tillman entered a plea of nolo contendere to one count of burglary and one count of indecent assault by forcible compulsion. "[T]he parties agreed that, in exchange for [Tillman's] plea, [Tillman] would receive some court-determined period of probation for the indecent assault by forcible compulsion charge to run consecutively to whatever sentence the court imposed for burglary." Commonwealth v. Tillman, (Pa. Super., No. 475 EDA 2008, filed June 3, 2009), slip op. at 2. The trial court sentenced Tillman to two to ten years imprisonment for burglary and two years probation for indecent assault by forcible compulsion to run consecutively to the burglary sentence. Id. at 5-6.
Tillman appealed to the Pennsylvania Superior Court, arguing that his sentence for indecent assault by forcible compulsion was illegal because, in accordance with 18 Pa. C.S. §3502(d), Tillman "could not be convicted 'both for burglary and for the offense which it was his intent to commit after the burglarious entry or for an attempt to commit that offense.'" Tillman, at 6 (emphasis added).
Regarding the legality of the sentence, the Superior Court examined 18 Pa. C.S. §3502(d) (emphasis added), which at that time provided:
In 2012, section 3502(d) was amended, and the word "convicted" was replaced with "sentenced."
(d) Multiple convictions.--A person may not be convicted both for burglary and for the offense which it was his intent to commit after the burglarious entry or for an attempt to commit that offense, unless the additional offense constitutes a felony of the first or second degree.The Superior Court relied on Commonwealth v. Byron, 465 A.2d 1023 (Pa. Super. 1983), which examined the effect of section 3502(d) upon a conviction for indecent assault and burglary. The Superior Court concluded that Byron could not be sentenced for both crimes, stating:
It was permissible for the trial judge, who tried appellant without a jury, to find appellant guilty of both burglary and indecent assault. However, since indecent assault is not a felony . . . but a misdemeanor . . . it was not permissible for the judge to convict appellant of both offenses, which is what the judge did by sentencing appellant for both burglary and indecent assault.Byron, 465 A.2d at 1024.
Following Byron, the Superior Court concluded that "[a]lthough it was permissible for [Tillman] to plead guilty to both crimes, it was not permissible for the trial court to sentence [Tillman] on both the burglary and indecent assault charges, where the indecent assault is the offense which [Tillman] intended to commit once inside the garage." Tillman, at 8. Accordingly, the Superior Court vacated Tillman's sentence for indecent assault by forcible compulsion.
Here, the Majority concludes that the conviction for burglary contained a sexual element because Tillman had the "intent to commit a crime therein [indecent assault by forcible compulsion]." (Maj. Op. at 16 (citation omitted).) In doing so, the majority ignores the fact that Tillman was not convicted of indecent assault by forcible compulsion. Nor did Tillman plead guilty to any offense. Tillman pled nolo contendere to burglary and indecent assault by forcible compulsion, which is an element of the offense of burglary. Although a nolo contendere plea has the same effect as a guilty plea for purposes of sentencing, it is not an admission of guilt. Commonwealth v. Lewis, 791 A.2d 1227, 1234 (Pa. Super. 2002). Moreover, by pleading nolo contendere, a criminal defendant does not admit to having committed an illegal act. See Commonwealth v. Snavely, 982 A.2d 1244, 1244, n.1 (Pa. Super. 2009). By vacating Tillman's sentence, the Superior Court also vacated his conviction of indecent assault by forcible compunction. Thus, I disagree with the Majority's statement that "Tillman was effectively convicted of a sexual offense though his sentence for that offense was vacated." (Maj. Op. at 15 (emphasis added).)
I note that there is no such concept in the law as an effective conviction.
Although this court stated in Wilson v. Pennsylvania Board of Probation and Parole, 942 A.2d 270, 273 (Pa. Cmwlth. 2008), that a state inmate has no liberty interest in not being labeled a sex offender I would conclude, nevertheless, that this stigmatizing label may not attach to an inmate who has not been convicted of a sexual offense. I agree with the Third Circuit's subsequent decision in Renchenski, that unless and until a prisoner has been afforded a due process hearing, sex offender status and conditions may not be imposed. See id.
"[T]he stigmatizing effects of being labeled a sex offender, when coupled with mandatory behavioral modification therapy, triggers an independent liberty interest emanating from the Due Process Clause of the Fourteenth Amendment." Renchenski, 622 F.3d at 328. --------
As previously stated, Tillman entered a plea agreement with the Commonwealth. His sentence did not include participation in a sex offender program. Because Tillman has not been convicted of a sex offense, in accordance with Renchenski, Tillman is entitled to a due process hearing to determine whether he should be classified as a sex offender.
I recognize and agree with the Majority that no inmate is entitled to parole. However, where, as here, the only reason stated for denial of parole is Tillman's failure to fulfill conditions of the sex offender program, I would grant the writ of mandamus and remand to the Pennsylvania Board of Probation and Parole for a due process hearing on whether Tillman should be classified as a sex offender and, in the event he is not classified as such, for reconsideration of whether Tillman is eligible for parole.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
Tillman v. Pennsylvania Board of Probation and Parole, (Pa. Cmwlth., No. 575 M.D. 2011, filed February 22, 2013), Slip Opinion at 14.