holding that “changes in the laws governing parole may violate the ex post facto clause.” (double emphasis in original)
How later courts described this case
- holding that “changes in the laws governing parole may violate the ex post facto clause.” (double emphasis in original)
- explaining that to demonstrate ex post facto violation under Garner and Morales , inmate must show that under previous parole law, "the Board would likely have paroled the inmate."
- conceding that the General Assembly “intended to ensure that those convicted of second-degree murder are never to be released on parole.”
- where a petitioner seeks mandamus relief predicated upon an ex post facto violation made out through statistical proofs, dismissal is appropriate if the petitioner fails to plead his statistical evidence with sufficient specificity
Written by the judges who cited it.
The opinion
*50 Justice SAYLOR,
concurring and dissenting.
I join Parts I (save its last paragraph), ILA, and III through V of the majority opinion. Relative to the majority’s determination in Part IIB that Appellant’s proffer is insufficient to warrant a hearing, I note that I joined the dissent in Hall v. PBPP, 578 Pa. 245 , 851 A.2d 859 (2004), because the petitioner there (like Appellant here) invoked the federal courts’ finding, based on, inter alia, statistical data derived from Commonwealth records, that, at least in the relevant time period, violent offenders faced a significantly increased likelihood of serving additional time in prison under the amended Parole Act and revised parole guidelines. 1 See generally Mickens-Thomas v. Vaughn, 321 F.3d 374 (3d Cir.2003). This, in my mind, amply distinguishes these cases from the situation in Winklespecht v. PBPP, 571 Pa. 685 , 813 A.2d 688 (2002), in which no averments pertaining to statistical proof (let alone a factual finding by a federal court) were made. Indeed, it seems at least to me that the petitioners in these cases may be entitled to rely on the Mickens-Thomas court’s findings pursuant to the doctrine of collateral estoppel or issue preclusion, since the question of whether previously convicted, violent offenders as a class have been disadvantaged by the amendments appears to be a common one; the finding is sought to be invoked against a party to the Mickens-Thomas case (the Pennsylvania Board of Probation and Parole); there would appear to have been a final judgment on the merits in federal court; and there is at least no present indication that the Board lacked a fair opportunity to litigate the question there. See generally Murphy v. Duquesne University, 565 Pa. 571, 599 , 777 A.2d 418, 435 (2001) (cataloguing the elements of collateral estoppel). While I realize that the Court reserves the entitlement to differ with federal courts subordinate to the *51 United States Supreme Court on federal constitutional issues, it has not yet expressly announced that it will not accord full faith and credit to their factual findings, for purposes of application of the doctrine of issue preclusion.
Since, at a minimum, I believe that Pennsylvania courts should take judicial notice of the Mickens-Thomas finding and accord it such evidentiary weight as it may warrant, and that such finding may in fact be entitled to controlling weight relative to a central dispute in these ex post facto cases, I remain of the view that the Hall and Cimaszewski petitioners stated claims adequate to survive demurrers.
Chief Justice CAPPY and Justice NIGRO join this concurring and dissenting opinion.
. The Hall petition stated:
The statistical data from the state’s records, found in the most recent case of Louis Mickens-Thomas, No. 99-6161, 217 F.Supp.2d 570 , U.S. District Court, by Judge Buckwalter, March 15, 2002, ... show that violent offenders routinely face a significant likelihood of serving more time in prison and thus have been disadvantaged by the change in the law in 1996.