Opinion
No. 575 M.D. 2011
02-22-2013
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 preliminary objections of the Pennsylvania Department of Corrections (DOC) to Jeffrey J. Tillman's (Tillman) amended petition for a writ of mandamus (amended petition) in this Court's original jurisdiction.
The Pennsylvania Board of Probation and Parole (Board) is also a party to this case. The Board initially preliminarily objected to Tillman's amended petition. The Board then withdrew its preliminary objections and filed an answer and new matter. Only DOC's preliminary objections are before this Court.
I. Background.
Tillman is 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 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.
Tillman appealed to the Pennsylvania Superior Court and attacked the sentence for indecent assault. See Section 3502(d) of the Crimes Code, 18 Pa.C.S. §3502(d). The Superior Court granted the appeal and vacated the sentence for indecent assault by forcible compulsion. Commonwealth v. Tillman, No. 475 EDA 2008 (Pa. Super. Filed June 3, 2009).
II. Amended Petition.
A. Introduction.
In his amended petition, Tillman divides the petition into sections. Paragraphs one through seven provide introductory material. Paragraphs eight through twenty-three address the Board. Tillman then restarts the numbering of paragraphs at one when he addresses the relief he requests from DOC.
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 it erroneously characterized him as a violent offender. Tillman also alleges that the Board unlawfully denied him parole because of his failure to complete the sex offender treatment program because he was not a sex offender once his indecent assault conviction was vacated.
B. Allegations against DOC.
1. Violation of Tillman's Rights under the Fifth , Eighth, and Fourteenth
Amendments to the United States Constitution.
Tillman alleges:
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 judgment [sic] 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. § 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]
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.
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 fourth 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.Amended Petition for Writ of Mandamus, February 27, 2012, (Amended Petition), Paragraph Nos. 1-4 at 11-13.
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).
Section 9718.1(a) of the Crimes 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 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.
2. Violation of DOC's Code of Ethics.
5) The DOC deliberately, unlawfully, arbitrarily, and capriciously misrepresented the sex offender treatment program requirements and Petitioner's [Tillman] legal obligations to comply with the mandatory program and the Petitioner's [Tillman] criminal / legal criminal records. The DOC also misrepresented said program through it's [sic] policies, staff, and unenforced Code of Ethics:
. . . .
B) Counselor Melisa Urbanick violated the Department of Corrections Code of Ethics, Section A-1 and Section B.1, 14 . . . when, during Petitioner's [Tillman] Anual [sic] Review, Melisa Urbanick became loud, argumentative and angry and in doing so began badgering Petitioner [Tillman] in an attempt to make him confess to raping a woman, stating that she knows Petitioner [Tillman] raped that woman and then shouting repeatedly 'You didn't rape that woman?', getting louder each time, all because the Petitioner [Tillman] questioned the legality of the Parole Board and the Department of
Corrections forcing him to take the S.O.P. [Sexual Offender Treatment Program], a statutorily mandated program when he does not have a conviction for a crime that mandates it; and in doing so she also failed to inform her superiors of the violation of the Law, reported to her repeatedly by Petitioner [Tillman].Amended Petition, Paragraph 5 at 13-14.
Tillman also alleges Melisa Urbanick (Counselor Urbanick) violated DOC's Code of Ethics when she fraudulently reported and misrepresented Tillman's conviction in an illegal attempt to require his participation in the sex offender treatment program.
3. DNA Acts.
Tillman also alleges:
6) The DOC violated the State DNA Act . . . by not filing [for] DNA destruction . . . when it received notice of the Parolee's [Tillman] vacated sentence which disqualified him . . . in that the sentencing Court had no statutory authority to mandate DNA testing . . . after conviction was vacated the special conditions order should have been retracted in the order as well. But as it stands it is still in effect and being [f]ollowed by the D.O.C.
7) The D.OC. violated the Federal Law when it failed to file a DNA destruction form for removal of Parolee's [Tillman] DNA from CODIS, violating his 5th, 8th, and 14th Amendment rights and 42 U.S.C.A. [sic] §
14132(d)(2)(A)(i)(ii). . . . Department of Corrections unlawfully, deliberately, arbitrarily and capriciously continues to prejudice Petitioner [Tillman] to the parole eligibility requirements of 42 PA.C.S.A. [sic] § 9718.1(B)(1) when Petitioner [Tillman] has no conviction of his underlying crime that is listed in 42 Pa.C.S.A. [sic] §9718.1(a) for which he would be required to comply, violating his 5th, 8th, and 14th, Amendment rights[.]Amended Petition, Paragraph Nos. 6-7 at 15.
CODIS is defined in Section 2303 of the DNA Detection of Sexual and Violent Offenders Act (Pennsylvania DNA Act), 44 Pa.C.S. §2303, as "[t]he term is derived from Combined DNA Index System, the Federal Bureau of Investigation's national DNA identification index system that allows the storage and exchange of DNA records submitted by state and local forensic DNA laboratories."
4. Writ of Mandamus.
Tillman seeks a writ of mandamus from this Court to direct DOC to remove the illegal program requirement, remove the violent sex offender label, remove his DNA from the state and federal database, discipline Counselor Urbanick for her violations of DOC's Code of Ethics, and train staff not to misrepresent information.
III. Preliminary Objections.
DOC preliminarily objects in the nature of a demurrer.
A. Code of Ethics
18. Petitioner [Tillman] is not entitled to any relief based on alleged violations of the Code of Ethics because '[a]dministrative regulations or policies do not create rights in inmates.' . . . .Preliminary Objections of Department of Corrections, July 3, 2012, (P.O's.), Paragraph No. 18 at 4.
B. Double Jeopardy
20. Plaintiff [Tillman] claims that the Department [DOC] has violated his rights under the Double Jeopardy Clause because the Department allegedly will not give him a positive recommendation for parole unless he completes the SOTP [Sexual Offender Treatment Program].P.O's., Paragraph Nos. 20-23 at 5.
21. The Double Jeopardy Clause bars successive prosecutions and multiple punishments for the same offense. . . .
22. The denial of parole does not constitute a second punishment or a successive prosecution. Indeed, offenders who are denied parole due to their failure to complete SOTP [Sexual Offender Treatment Program] are 'subject to no greater burden than that imposed by the sentencing judge.' . . . . Therefore Petitioner [Tillman] has not made out a prima facie double jeopardy claim.
23. Moreover, the Department's [DOC] parole recommendation, 'favorable or unfavorable is not binding on the Board [of Probation and Parole]'s decision whether to grant or refuse parole because the Board has exclusive discretion to parole individuals under its jurisdiction.' . . . .
C. DNA Databases
25. Petitioner (Tillman) alleges that the Department [DOC] violated Pennsylvania's DNA Data and Testing Act . . . ('DNA Act') by failing to somehow request that Petitioner's [Tillman] DNA sample be destroyed following the vacation of his sex offense conviction. . . .
26. Under the DNA Act, the State Police has sole responsibility for administering the Commonwealth's DNA identification record system. . . .
27. The Department [DOC] has no duty to request that Petitioner's [Tillman] DNA sample to be removed from the DNA identification record system, and the DNA Act does not authorize the Department [DOC] to request expunction on an inmate's behalf.P.O's., Paragraph Nos. 25-27, and 29-30 at 6-7.
. . . .
29. Similarly, Petitioner [Tillman] also alleges that the Department [DOC] has violated the federal DNA Identification Act . . . by failing to request that Petitioner's [Tillman] DNA sample in the federal DNA database be destroyed following the vacation of his sex offense conviction. . . .
30. However, expunction of an [sic] prisoner's DNA records is not the Department's [DOC] responsibility—again, it is Petitioner's [Tillman] responsibility to submit proof that his sex offender conviction has been vacated and request expunction. . . . (Citations omitted).
IV. Analysis.
A. Standard.
When considering preliminary objections this Court must consider as true all well-pleaded material facts set forth in the petitioner's petition and all reasonable inferences that may be drawn from those facts. Mulholland v. Pittsburgh National Bank, 405 Pa. 268, 271-272, 174 A.2d 861, 863 (1961). Preliminary objections should be sustained only in cases clear and free from doubt that the facts pleaded are legally insufficient to establish a right to relief. Werner v. Zazyczny, 545 Pa. 570, 681 A.2d 1331 (1996).
Mandamus is an extraordinary writ designed to compel performance of a ministerial act or mandatory duty where there exists a clear legal 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, 460 Pa. 274, 333 A.2d 473 (1975).
B. Code of Ethics.
With respect to DOC's position that Tillman fails to state a cause of action for a writ of mandamus for violations of its Code of Ethics for the conduct of Counselor Urbanick, DOC asserts that its administrative policies do not create any enforceable rights in inmates.
In Bullock v. Horn, 720 A.2d 1079 (Pa. Cmwlth. 1998), this Court noted that administrative regulations or policies do not create any rights in inmates. A review of the Code of Ethics, attached as an exhibit to the Amended Petition, reflects that the Code is identified as "rules and regulations" in the document itself.
This Court agrees with DOC that the Code of Ethics for DOC employees does not create a clear right to relief in Tillman. Consequently, there is no basis for mandamus to issue and this Court sustains DOC's preliminary objection.
C. Double Jeopardy.
Next, DOC contends that Tillman fails to state a viable Double Jeopardy claim because he has not been subjected to successive prosecutions or multiple punishments for the same offense. Tillman asserts that DOC has violated his rights under the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.
Under the Double Jeopardy Clause, an individual cannot be prosecuted more than once or receive multiple punishments for the same offense. Commonwealth v. Buffington, 574 Pa. 29, 828 A.2d 1024 (2003). This Court has held that the denial of parole does not constitute a second punishment or a successive prosecution. In fact, with respect to the sexual offender treatment program, this Court has determined that a prisoner who is denied parole because of his failure to complete the sexual offender treatment program is subject to no greater burden than that imposed by the sentencing judge. Evans v. Pennsylvania Board of Probation and Parole, 820 A.2d 904 (Pa. Cmwlth. 2003).
This Court agrees with DOC that Tillman has failed to allege facts that, if proven, establish a clear right to relief from requiring his participation in the sexual offender treatment program or that DOC has any corresponding duty in this regard with respect to the Double Jeopardy portion of the Fifth Amendment. Therefore, DOC's preliminary objection to Tillman's claim involving Double Jeopardy is sustained.
However, Tillman alleges other constitutional violations in that he has a liberty interest in whether he is labeled a sex offender when such a label would prevent him from obtaining parole and where he was not convicted of a sex offense. He argues he has a right to due process before he could be placed in a sex offender treatment program because he did not commit a crime listed under Section 9718.1(a) of the Crimes Code, 42 Pa.C.S. §9718.1(a), which warranted placement in a sex offender treatment program. See Renchenski v. Williams, 622 F.3d 315 (3d Cir. 2010). DOC does not address this allegation.
In Renchenski, the United States Court of Appeals (Third Circuit) held that an inmate has an independent liberty interest in not being labeled as a sex offender and was entitled to due process before a correctional institution may impose sexual offender conditions on an inmate who had not been convicted of a sexual offense.
Tillman also alleges that DOC has violated the Eighth Amendment of the United States Constitution because it subjected him to cruel and unusual punishment when it placed him in the sex offender program when he was not convicted of a sexual offense. DOC does not explicitly address this allegation.
DOC must answer these claims.
D. Pennsylvania DNA Act.
Next, DOC contends that Tillman fails to state any claim against DOC related to the Pennsylvania DNA Act because DOC has no duty or authority to request or order the expungement of Tillman's DNA records. Section 2311(1) of the Pennsylvania DNA Act, 44 Pa.C.S. §2311(1), provides that the Pennsylvania State Police shall "[b]e responsible for the policy management and administration of the State DNA identification record system. . . ." Under the Pennsylvania DNA Act, DOC does not have the authority to expunge DNA records.
Further, Section 2321(a) of the Pennsylvania DNA Act, 44 Pa.C.S. §2321(a), provides that a person whose DNA record is included in the State DNA Data Bank may request expungement on the grounds that the conviction was reversed and the case dismissed or the profile was included in the State DNA Data Bank by mistake. Under Section 2321(b) of the Pennsylvania DNA Act, 44 Pa.C.S. §2321(b), the Pennsylvania State Police is responsible for purging records in the State DNA Data Bank. DOC does not have a duty to notify the Pennsylvania State Police and seek an expungement.
This Court agrees that Tillman fails to state a claim under the Pennsylvania DNA Act.
E. Federal DNA Act.
With respect to the federal DNA Identification Act of 1994, 42 U.S.C. §14132(d)(2)(A) provides that a state shall expunge the DNA analysis of a person included in the DNA index by that state if the following occurs:
(i) the responsible agency or official of that State receives, for each conviction of the person of an offense on the basis of which that analysis was or could have been included in the index, a certified copy of a final court order establishing that such conviction has been overturned; or
(ii) the person has not been convicted of an offense on the basis of which that analysis was or could have been included in the index, and the responsible agency or official of that State receives, for each charge against the person on the basis of which the analysis was or could have been included in the index, a certified copy of a final court order establishing that such charge has been dismissed or has resulted in an acquittal or that no charge was filed within the applicable time period. (Emphasis added).
Once again, the General Assembly designated the Pennsylvania State Police as the "responsible agency" with respect to the federal DNA databank. DOC has no duty with respect to the federal DNA databank.
This Court agrees with DOC that Tillman has failed to set forth a claim for mandamus relief under either the Pennsylvania DNA Act or the federal DNA Identification Act of 1994.
V. Conclusion.
This Court sustains DOC's preliminary objections. 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.
This Court notes that Tillman has failed to divide his amended complaint into counts as required by Rules 1020(a) and (d)(1) of the Pennsylvania Rules of Civil Procedure, Pa.R.C.P. No. 1020(a) and (d)(1) which provide:
Rule 1020. Pleading More Than One Cause of Action. . . .
(a) The plaintiff may state in the complaint more than one cause of action cognizable in a civil action against the same defendant. Each cause of action and any special damage related thereto shall be stated in a separate count containing a demand for relief.
. . . .
(d)(1) If a transaction or occurrence gives rise to more than one cause of action against the same person, including causes of action in the alternative, they shall be joined in separate counts in the action against any such person.
Accordingly, DOC's preliminary objections are sustained on the basis that Tillman fails to adequately plead allegations that, if proven, would establish that he is entitled to mandamus relief. DOC is directed to file an answer to the portion of Paragraph Numbers one through four of Tillman's amended petition which were addressed to DOC and which were not disposed of by DOC's preliminary objections.
DOC also preliminarily objects for failure to conform to a rule of court because the Amended Petition does not contain consecutively numbered paragraphs with each paragraph containing only one factual allegation or statement and is unverified in violation of Pa.R.A.P. 1513. Because of this Court's ability to glean the substance of Tillman's claims and because of DOC's ability to do the same, this Court need not address this procedural preliminary objection. --------
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 22nd day of February, 2013, this Court sustains the preliminary objections raised by the Pennsylvania Department of Corrections and directs the Pennsylvania Department of Corrections to file an answer in response to the claims raised by Jeffrey J. Tillman in Paragraph Numbers one through four of Tillman's amended petition which are addressed to DOC and which were not disposed of by the Pennsylvania Department of Corrections' preliminary objections.
/s/_________
BERNARD L. McGINLEY, Judge
However, DOC did not object to the amended petition on this basis, so this Court shall permit the amended petition to go forward.