M. Stokes v. PA General Assembly, PBPP

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Stokes, :

Petitioner :

:

v. : No. 266 M.D. 2019

: Submitted: November 13, 2020

Pennsylvania General Assembly, :

PA. Board of Probation & Parole, :

Respondents :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1

HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY PRESIDENT JUDGE LEAVITT FILED: April 12, 2021

Before this Court are the preliminary objections filed by the

Pennsylvania Board of Probation and Parole (Parole Board)2 and Pennsylvania

General Assembly to a petition for review filed pro se by Michael Stokes in this

Court’s original jurisdiction. Upon review, we sustain the preliminary objections

and dismiss the petition with prejudice. We further deny Stokes’ motion to amend

the petition because the amendment will not cure the defects raised in the preliminary

objections.

1

The case was assigned to the opinion writer before January 4, 2021, when Judge Leavitt

completed her term as President Judge.

2

Following the filing of the petition for review, the Pennsylvania Board of Probation and Parole

was renamed the Pennsylvania Parole Board. See Sections 15, 16, and 16.1 of the Act of December

18, 2019, P.L. 776, No. 115 (effective February 18, 2020); see also Sections 6101 and 6111(a) of

the Prisons and Parole Code (Parole Code), as amended, 61 Pa. C.S. §§6101, 6111(a).

On May 3, 2019, Stokes filed a petition for writ of mandamus or

prohibition, in which he asserts that Section 6137(a)(1) of the Prisons and Parole

Code (Parole Code), 61 Pa. C.S. §6137(a)(1), as applied to him, violated the double

jeopardy, bill of attainder, and ex post facto clauses of the United States

Constitution.3 Specifically, the petition alleges that in 1994, Stokes was convicted

of first-degree murder and sentenced to a term of life imprisonment. In 2014, the

Parole Board denied Stokes parole under Section 6137(a)(1) of the Parole Code

because he was serving a life sentence. In 2019, Stokes again applied for parole and

did not receive a response. Stokes claims that he was sentenced to “a term of life

imprisonment” authorized by Section 1102(a) of the Crimes Code, 18 Pa. C.S.

§1102(a); his “complete ineligibility of the possibility of parole” under Section

6137(a)(1) of the Parole Code constituted a separate punishment for the same crime

he committed. Petition for Review, ¶¶9, 18. The petition asserts that the General

Assembly and the Parole Board, by enacting and enforcing Section 6137(a)(1),

“usurped the jurisdiction of the Judicial Branch.” Petition for Review, ¶3. Stokes

asks this Court to strike down Section 6137(a)(1).

On May 11, 2020, the respondents filed preliminary objections seeking

dismissal of Stokes’ petition. The General Assembly preliminarily objects to

Stokes’ petition on three grounds.4 It first asserts that this Court lacks jurisdiction

3

Article I, Section 10 of the United States Constitution provides that “[n]o State shall … pass any

Bill of Attainder, [or] ex post facto Law….” U.S. CONST. art. I, §10. The Fifth Amendment to

the United States Constitution provides that “[n]o person shall ... be subject for the same offence

to be twice put in jeopardy of life or limb....” U.S. CONST. amend. V.

4

Pennsylvania Rule of Civil Procedure 1028(a) provides, in pertinent part:

(a) Preliminary objections may be filed by any party to any pleading and are limited

to the following grounds:

2

in this matter because the General Assembly is immune from suit under the Speech

and Debate Clause found in Article II, Section 15 of the Pennsylvania Constitution.

PA. CONST. art. II, §15. The General Assembly also asserts that the petition does not

state a claim for which relief can be granted; the state statutory scheme defines the

crime of murder in the first degree and its applicable sentence as life imprisonment

without parole. Finally, the General Assembly asserts that Stokes has not exhausted

the statutory remedy available to him under the Post Conviction Relief Act. 42 Pa.

C.S. §§9541-9546.

The Parole Board’s preliminary objections assert that the petition failed

to include a verification statement in compliance with Pennsylvania Rule of Civil

Procedure 1024.5 Second, a portion of the petition was not divided into

consecutively numbered paragraphs, with each containing a single allegation of fact

or other statement, as required by Pennsylvania Rule of Appellate Procedure

(1) lack of jurisdiction over the subject matter of the action or the

person of the defendant, improper venue or improper form or service

of a writ of summons or a complaint;

***

(4) legal insufficiency of a pleading (demurrer);

***

(7) failure to exercise or exhaust a statutory remedy[.]

PA. R.C.P. No. 1028(a).

5

This rule states in pertinent part:

(a) Every pleading containing an averment of fact not appearing of record in the

action or containing a denial of fact shall state that the averment or denial is true

upon the signer’s personal knowledge or information and belief and shall be

verified. The signer need not aver the source of the information or expectation of

ability to prove the averment or denial at the trial. A pleading may be verified upon

personal knowledge as to a part and upon information and belief as to the

remainder.

PA. R.C.P. No. 1024. See also PA. R.A.P. 1513(e)(6).

3

1513(c).6 The Parole Board also adopts the arguments made by the General

Assembly regarding the legal insufficiency of the petition.

In response to the Parole Board’s preliminary objections, on November

3, 2020, Stokes filed a motion to amend his petition for review pursuant to

Pennsylvania Rule of Civil Procedure 1033.7 The amended petition is the same as

the original except that it includes a verification statement and sets forth the

allegations in consecutively numbered paragraphs. On November 12, 2020, this

Court ordered that Stokes’ motion be decided with the preliminary objections.

I. General Assembly’s Preliminary Objections

We first address the General Assembly’s assertion that Stokes’ claims

against the General Assembly are barred by the Speech and Debate Clause of the

Pennsylvania Constitution.8

Article II, Section 15 of the Pennsylvania Constitution provides:

6

This rules states:

c) Form.--Any petition for review shall be divided into consecutively numbered

paragraphs. Each paragraph shall contain, as nearly as possible, a single allegation

of fact or other statement.

PA. R.A.P. 1513(c).

7

This rule provides in relevant part:

(a) A party, either by filed consent of the adverse party or by leave of court, may at

any time change the form of action, add a person as a party, correct the name of a

party or otherwise amend the pleading.

PA. R.C.P. No. 1033.

8

Under Pennsylvania Rule of Civil Procedure 1030(a), immunity from suit is an affirmative

defense that must be pled in a responsive pleading under the heading “New Matter,” not as a

preliminary objection. Pa. R.C.P. No. 1030(a). We recognize that courts have permitted a limited

exception to this rule and have allowed parties to raise the affirmative defense of immunity as a

preliminary objection. The affirmative defense, however, must be clearly applicable on the face

of the petition for review. In any case, where the petitioner does not object to a respondent raising

immunity by preliminary objection, the court may rule on the objection. Smolsky v. Pennsylvania

General Assembly, 34 A.3d 316, 321 n.7 (Pa. Cmwlth. 2011) (citations omitted). Here, Stokes did

not object.

4

The members of the General Assembly shall in all cases, except

treason, felony, violation of their oath of office, and breach or

surety of the peace, be privileged from arrest during their

attendance at the sessions of their respective Houses and in going

to and returning from the same; and for any speech or debate in

either House they shall not be questioned in any other place.

PA. CONST. art. II, §15. The Pennsylvania Speech and Debate Clause has been

interpreted as essentially the same as the Speech and Debate Clause found in Article

I, Section 6 of the United States Constitution, U.S. CONST. art. I, §6. Consumers

Education and Protective Association v. Nolan, 368 A.2d 675, 680 (Pa. 1977).

Our state Supreme Court has declared that the Speech and Debate

Clause “must be interpreted broadly in order to protect legislators from judicial

interference with their legitimate legislative activities.” Id. at 680-81. “[E]ven

where the activity questioned is not literally speech or debate, ... if it falls within the

‘legitimate legislative sphere’ ... the action against the legislator ... must be

dismissed.” Id. at 681. It is axiomatic that the passage of legislation falls within the

legitimate sphere of legislative activity. Lincoln Party v. General Assembly, 682

A.2d 1326, 1333 (Pa. Cmwlth. 1996).

In this case, Stokes challenges Section 6137(a)(1) of the Parole

Code, the passage of which falls within the legitimate sphere of legislative activity

and, as such, is protected by the Speech and Debate Clause. Consumer Party of

Pennsylvania v. Commonwealth, 475 A.2d 850 (Pa. Cmwlth. 1984) (Speech and

Debate Clause was an absolute bar to suit against the General Assembly challenging

constitutionality of statute).

5

Therefore, we sustain the General Assembly’s preliminary objections

on grounds of immunity9 and dismiss Stokes’ claims against the General Assembly

with prejudice.

II. Parole Board’s Preliminary Objections

We consider, next, the Parole Board’s preliminary objection in the

nature of a demurrer. In consideration of the demurrer, we must accept as true all

well-pleaded allegations of material fact and all inferences reasonably deducible

therefrom. Myers v. Ridge, 712 A.2d 791, 794 (Pa. Cmwlth. 1998). We need not

accept as true conclusions of law, unwarranted inferences, argumentative

allegations, or expressions of opinion. Id. The test is whether the facts pleaded

are legally insufficient to establish a clear right to relief. Werner v. Zazyczny, 681

A.2d 1331, 1335 (Pa. 1996).

The instant petition was filed in the nature of mandamus or prohibition.

A writ of mandamus is available only to compel the performance of a ministerial act

or mandatory duty where there exists no other adequate and appropriate remedy.

Jackson v. Vaughn, 777 A.2d 436, 438 (Pa. 2001). Mandamus lies where there is a

clear legal right in the petitioner, a corresponding duty in the respondent, and a lack

of any other appropriate and adequate remedy. Porter v. Bloomsburg State

College, 301 A.2d 621, 622 (Pa. 1973); Clark v. Beard, 918 A.2d 155, 159 (Pa.

Cmwlth. 2007). The purpose of mandamus is not to establish legal rights, but to

enforce those rights which are already established. Clark, 918 A.2d at 159.

Here, the petition does not seek to compel the performance of a

ministerial act or mandatory duty. Rather, it asks this Court to declare Section

9

Since we find for the General Assembly on this preliminary objection, we need not address its

other preliminary objections.

6

6137(a)(1) of the Parole Code unconstitutional as violating the double jeopardy, bill

of attainder, and ex post facto clauses of the United States Constitution. Mandamus

is not the vehicle for challenging the constitutionality of a statute. 18 STANDARD

PENNSYLVANIA PRACTICE 2d §99:6 (2021 ed.); see also Waters v. Department of

Corrections, 509 A.2d 430, 433 (Pa. Cmwlth. 1986). Even so, the petition fails to

state a claim upon which relief can be granted.

To allege a constitutional violation, a petitioner is “required to plead

sufficient facts showing a challenged action clearly and unambiguously violated a

constitutionally secured right.” Nickson v. Pennsylvania Board of Probation and

Parole, 880 A.2d 21, 24 (Pa. Cmwlth. 2005). Further, a statute is presumed to be

constitutional unless it clearly, palpably, and plainly violates the constitution.

Pennsylvania Builders Association v. Department of Labor and Industry, 4 A.3d

215, 220 (Pa. Cmwlth. 2010) (quotation omitted). A party challenging the

constitutionality of a statute has the heavy burden to overcome that presumption. Id.

Article I, Section 10 of the United States Constitution provides that

“[n]o State shall … pass any Bill of Attainder, [or] ex post facto Law….” U.S.

CONST. art. I, §10. The Fifth Amendment to the United States Constitution provides

that “[n]o person shall ... be subject for the same offence to be twice put in jeopardy

of life or limb....” U.S. CONST. amend. V. Statutes “that apply either to named

individuals or to easily ascertainable members of a group in such a way as to inflict

punishment on them without a judicial trial are bills of attainder prohibited by the

Constitution.” United States v. Brown, 381 U.S. 437, 448-49 (1965). For a law to

transgress the ex post facto prohibition, “the law must retrospectively alter the

definition of criminal conduct or retrospectively increase the penalty by which a

crime is punishable.” Frederick v. Department of Transportation, Bureau of Driver

7

Licensing, 802 A.2d 701, 704 (Pa. Cmwlth. 2002). Further, the double jeopardy

clause, in its most general sense, “protects against a [criminal] defendant being

harassed by multiple prosecutions for the same wrongful act and against multiple

punishments for the same crime.” Commonwealth v. Rightley, 617 A.2d 1289, 1292

(Pa. Super. 1991) (quoting Commonwealth v. Bolden, 373 A.2d 90, 97-98 (Pa.

1977)).

Section 6137(a)(1) of the Parole Code provides that the Parole Board

“may release on parole any inmate to whom the power to parole is granted to the

[B]oard by this chapter, except an inmate condemned to death or serving life

imprisonment.” 61 Pa. C.S. §6137(a)(1) (emphasis added). Stokes was convicted

of first-degree murder in 1994 pursuant to Section 1102(a) of the Crimes Code, 18

Pa. C.S. §1102(a), and sentenced to life imprisonment. The current version of the

Parole Code was not in effect at the time of Stokes’ sentencing,10 but the statutory

scheme that existed in 1994 provided that a criminal offender serving life

imprisonment for a first-degree murder conviction had no minimum sentence and,

hence, was not eligible for parole. See Commonwealth v. Yount, 615 A.2d 1316 (Pa.

Super. 1992). At the time of his offense, Stokes was on notice that the penalty for

his first-degree murder conviction was life imprisonment without parole, even

though the Crimes Code is silent on parole ineligibility. See Commonwealth v. Bell,

645 A.2d 211, 218 (Pa. 1994) (statute setting forth a mandatory minimum sentence

was not unconstitutionally vague for failing to specify a maximum sentence since

the maximum sentence was implied when read together with other statutes). The

petition does not state an ex post facto claim.

10

The Parole Code was enacted by the act of August 11, 2009, P.L. 147, as amended, 61 Pa. C.S.

§§101-7123, which repealed the act of August 6, 1941, P.L. 861, commonly known as the Parole

Act, formally referred to as the Pennsylvania Board of Probation and Parole Law.

8

Contrary to Stokes’ proposition, a denial of parole does not constitute

an increase in sentence; it is simply a fulfillment of the original punishment. Young

v. Board of Probation and Parole, 409 A.2d 843, 847 (Pa. 1979) (parole is “a

penological measure for the disciplinary treatment of prisoners who seem capable of

rehabilitation outside of prison walls. It does not set aside or affect the sentence.”)

(emphasis and citation omitted). The petition’s quote from Solem v. Helm, 463 U.S.

277 (1983), that life imprisonment without the possibility of parole constitutes a

penalty “far more severe” than a life sentence, is taken out of context. Petition for

Review at 6. Solem involved a criminal defendant who was sentenced to life

imprisonment without parole for his conviction of issuing a “no account” check for

$100. It was the defendant’s seventh non-violent felony conviction. In granting a

writ of habeas corpus, the United States Supreme Court held that the sentence was

disproportionate to the crime and, thus, violated the prohibition in the Eighth

Amendment to the United States Constitution against cruel and unusual punishment.

U.S. CONST. amend. VIII. In so ruling, the Supreme Court cited Rummel v.

Estelle, 445 U.S. 263 (1980), in which the Court held that a Texas sentence of life

imprisonment with the possibility of parole after 12 years for a conviction of

receiving $120.75 by false pretenses (the defendant’s third non-violent felony

conviction) did not contravene the Eighth Amendment. The Solem Court

distinguished the matter from Rummel by stating that the sentence of life

imprisonment without possibility of parole in light of the circumstances of the case

“is far more severe than the life sentence we considered in Rummel[.]” Solem, 463

U.S. at 297. Contrary to Stokes’ proposition, Solem did not hold that any life

sentence without parole violates the double jeopardy or the bill of attainder clause

of the United States Constitution.

9

Stokes has moved to amend his petition for review. The decision to

allow an amendment is committed to the sound discretion of the court.11 Burger v.

Borough of Ingram, 697 A.2d 1037, 1041 (Pa. Cmwlth. 1997). “Leave to amend

will be withheld where the initial pleadings reveal that the prima facie elements of

the claim cannot be established and that the complaint’s defects are so substantial

that amendment is not likely to cure them.” Roach v. Port Authority of Allegheny

County, 550 A.2d 1346, 1347-48 (Pa. Super. 1988). Stokes’ amended petition

includes a verification statement and is divided into consecutively numbered

paragraphs, but it nevertheless fails to state a claim upon which relief may be

granted.

Conclusion

For the foregoing reasons, we sustain the General Assembly’s and the

Parole Board’s preliminary objections and dismiss the petition for review with

prejudice. We also deny Stokes’ motion to amend the petition for review because

the amended petition is unlikely to survive the demurrer raised in the preliminary

objections.

_____________________________________

MARY HANNAH LEAVITT, President Judge

Judge Crompton did not participate in the decision in this case.

11

Pennsylvania Rule of Civil Procedure 1028(c)(1) provides that “[a] party may file an amended

pleading as of course within twenty days after service of a copy of preliminary objections. If a

party has filed an amended pleading as of course, the preliminary objections to the original

pleading shall be deemed moot.” PA. R.C.P. No. 1028(c)(1). Rule 1028(c)(1) does not apply here

because Stokes’ motion to amend was filed six months after service of the preliminary objections.

10

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Stokes, :

Petitioner :

:

v. : No. 266 M.D. 2019

:

Pennsylvania General Assembly, :

PA. Board of Probation & Parole, :

Respondents :

ORDER

AND NOW, this 12th day of April, 2021, the preliminary objections

filed by the Pennsylvania General Assembly and Pennsylvania Board of Probation

and Parole in the above-captioned matter are SUSTAINED, and the petition for

review filed by Michael Stokes is DISMISSED with prejudice.

Michael Stokes’ motion to amend the petition for review filed on

November 3, 2020, is DENIED.

_____________________________________

MARY HANNAH LEAVITT, President Judge