Finnegan v. Pennsylvania Board of Probation & Parole

Justice SAYLOR,

Dissenting.

The majority employs the recent plurality decision in Winklespecht v. Pennsylvania Bd. of Probation and Parole, 571 Pa. 685 , 813 A.2d 688 (2002), to suggest that there was a majority consensus on the Court for a matter-of-law determination that *70 the 1996 revision of Section 331.1 of the Parole Act does not violate constitutional ex post facto precepts when applied to a prisoner convicted prior to revision. See Majority Opinion, 576 Pa. at 64 n. 2, 838 A.2d at 687 n. 2. In fact, my reasoning as one of the four Justices counted as comprising a Winklespecht majority rested on a substantially narrower ground. See Winklespecht, 571 Pa. at 700 , 813 A.2d at 697 (Saylor, J., concurring and dissenting) (“absent some evidence of a systemic change in the rate at which the Board grants parole, or other proof regarding changes in parole frequency following the 1996 amendment, Petitioner cannot carry his burden of establishing that the Constitution has been violated.”); accord 59 Am.Jur.2d Pardon and Parole § 81 (2003) (“When the rule governing the parole of prisoners does not by its own terms show a significant risk of increased punishment, the party seeking to demonstrate an ex post facto violation based on retroactive application of the rule must demonstrate, by evidence drawn from the rule’s practical implementation by the agency charged with exercising discretion, that its retroactive application will result in a longer period of incarceration for that party than under the earlier rule.”). Significantly, in this case, however, Appellant has averred in his mandamus petition evidence of such a systematic change, 1 resulting from the statutory amendments and associated modifications to the Board’s parole guidelines. 2

Appellant’s entitlement to a hearing on such averment is confirmed by the United States Supreme Court’s decision *71 cited by the majority, Garner v. Jones, 529 U.S. 244, 256 , 120 S.Ct. 1362, 1370-71 , 146 L.Ed.2d 236 (2000), which concerned an ex post facto challenge to a state parole board’s modification of its rules governing the timing of reconsideration of parole decisions for inmates serving life sentences. See id. at 247 , 120 S.Ct. at 1366 . While the majority emphasizes portions of Gamer that afford context to the Supreme Court’s holding, see Majority Opinion, 576 Pa. at 65, 838 A.2d at 688, it overlooks that Gamer resulted in a remand for a hearing to address factual averments concerning the incidence of favorable parole determinations analogous to those presently before this Court. See Garner, 529 U.S. at 255-56 , 120 S.Ct. at 1370-71 (emphasizing the need for evidence respecting the practical implementation of the parole rule and remanding to allow the respondent an opportunity to develop such proof). In the face of Gamer, the majority’s controlling reliance on the discretionary aspect of parole decisions is unjustified. See generally 59 Am.Jur.2d Pardon and Parole § 81 (“Caution: Cases preceding the Supreme Court’s decision in the Gamer case often relied on the rationale that parole laws are not penal laws, and do not increase punishment, but are merely procedural rules to aid a parole board in exercise of its discretion, and so are not subject to ex post facto clause. As a result of the Supreme Court decision, this rationale is no longer applicable.”).

Since I am unable to meaningfully distinguish Gamer on the federal constitutional question presently before the Court, I respectfully dissent in favor of a remand for hearing on the substantive allegations of the petition.

Chief Justice CAPPY and Justice NIGRO join this dissenting opinion.

. Citing Commonwealth v. Stark, 698 A.2d 1327, 1332 (Pa.Super.1997), Appellant asserted that:

[I]n 1991, eighty percent of state prisoners were released on parole at the completion of their minimum sentences. By contrast, in the first quarter of 1996, only twenty-nine percent of prisoners were released at the expiration of their minimum sentences.

Petition for Mandamus at ¶ 18. In Stark , the Superior Court acknowledged such statistical findings in addressing whether a defendant was entitled to withdraw his guilty plea based upon same changes in the state parole system at issue here. See id. at 1328-29 .

. The Board's guidelines and internal policies are relevant in determining whether the statutory amendments "creat[ed] a significant risk of prolonging [Appellant’s] incarceration.” Garner v. Jones, 529 U.S. 244, 256 , 120 S.Ct. 1362, 1370-71 , 146 L.Ed.2d 236 (2000).