J. Brown v. PBPP

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jamie Brown, :

Petitioner :

:

v. : No. 312 M.D. 2022

: Submitted: May 12, 2023

Pennsylvania Board of Probation :

and Parole, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE LORI A. DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE DUMAS FILED: February 1, 2024

Jamie Brown (Brown) has filed a petition for review purporting to seek

mandamus relief in this Court’s original jurisdiction. Brown contends that the 2020

amendment of the Prisons and Parole Code, Section 6139(a)(3.3),1 constitutes a

violation of the ex post facto clause of the United States and Pennsylvania

Constitutions,2 and he further challenges various procedural aspects of the

Pennsylvania Parole Board’s (the Board)3 February 3, 2022 decision. In response,

the Board has filed preliminary objections, asserting that it is not a proper party, that

1

See Prisons and Parole Code, 61 Pa.C.S. § 6139(a)(3.3), as amended by the Act of

November 25, 2020, P.L. 1219, No. 124 (the Code).

2

U.S. Const. art. I, § 9, cl. 3; Pa. Const. art. I, § 17.

3

Subsequent to the filing of the petition for review, the Pennsylvania Board of Probation

and Parole has been 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, as amended, 61 Pa. C.S. §§ 6101, 6111(a).

Brown failed to exhaust statutory remedies, and by demurrer.4 We overrule the

Board’s preliminary objections averring that it is not a proper party and that Brown

failed to exhaust his administrative remedies, and we sustain the objection by

demurrer. Accordingly, we dismiss Counts I and IV from Brown’s petition for

review.

I. BACKGROUND5

In 2001, Brown was convicted of third-degree murder and received a

sentence of 20 to 40 years of incarceration.6 He is incarcerated at the State

Correctional Institution Forest (SCI-Forest) in Marienville, Pennsylvania.7 He has

extensively but unsuccessfully litigated his conviction in both state and federal

courts. According to Brown, he has served his minimum sentence and is eligible for

parole. However, the Board has repeatedly denied Brown’s parole request based on

the nature of the charges, his refusal to accept responsibility for the crime, and his

lack of remorse.8

The Board denied Brown’s application for parole on December 17,

2020. See Notice of Bd. Decision, 12/17/20, at 1. This denial informed him that he

4

On September 29, 2022, this Court overruled the Board’s preliminary objection to

improper service following Brown’s compliance with the service requirements of Pa.R.A.P. 1514.

See Order, 9/29/22.

5

We base the statement of facts on the bare assertions alleged in the petition for review.

See Pet. for Review, 5/27/22. Additionally, Brown attached several documents as exhibits to his

petition. See Foxe v. Pa. Dep’t of Corr., 214 A.3d 308, 310 n.1 (Pa. Cmwlth. 2019) (observing

that courts reviewing preliminary objections may not only consider the facts pleaded in the petition

for review, but also any documents or exhibits attached to it).

6

Although it is unclear from Brown’s pleadings, it appears that his minimum sentence date

was March 17, 2021. See Notice of Bd. Decision, 12/17/20, at 2 (recognizing Brown’s maximum

sentence date as March 17, 2041).

7

Per the mailing address on attached correspondence, Brown is incarcerated at SCI-Forest.

8

Although Brown avers that the Board has denied repeatedly his applications for parole,

he has attached only a single decision of the Board. See Pet. for Rev., ¶ 1; Notice of Bd. Decision.

2

could apply for parole one year after the date of the denial. At some point, Brown

filed a petition for administrative review because the Board informed Brown that the

decision was a parole refusal, and there is no right to request administrative review

of a parole decision. See Bd. Correspondence, 3/2/21.

Brown again applied for parole in January 2022. However, the Board

responded by letter dated February 3, 2022, and informed him that the Board was

3

not required to consider his application until three years from the date of the prior

denial, citing in support 61 Pa.C.S. § 6139(a)(3.3).9, 10

9

Section 6139(a)(2) requires the Board to consider applications for parole. 61 Pa.C.S. §

6139(a)(2). Section 6139(a)(3) provides that the Board need not consider nor dispose of an

application for parole if it has issued a parole decision on the case within the prior year. Id. §

6139(a)(3). On November 25, 2020, the General Assembly added Section 6139(a)(3.3)(i)-(ii),

which provides:

(i) Notwithstanding the provisions of paragraphs (2) and (3), if a parole

decision has been issued by the board within three years of the date of the

current application, the board shall not be required to consider nor dispose

of an application by an inmate or an inmate’s attorney in the case of an

inmate sentenced under any of the following provisions of 18 Pa.C.S.

(relating to crimes and offenses):

Section 2502(c) (relating to murder).

Section 2503 (relating to voluntary manslaughter).

Section 2901(a.1) (relating to kidnapping).

Section 3011(b) (relating to trafficking in individuals).

Section 3012 (relating to involuntary servitude).

Section 3121 (relating to rape).

Section 3122.1(b) (relating to statutory sexual assault).

Section 3123 (relating to involuntary deviate sexual intercourse).

Section 3124.1 (relating to sexual assault).

Section 3124.2(a.1) (relating to institutional sexual assault).

Section 3125 (relating to aggravated indecent assault).

Section 3126(a)(7) (relating to indecent assault).

Section 4302(b) (relating to incest).

(ii) Nothing under this paragraph shall be interpreted as granting a right to

be paroled to any person, and a decision by the board and its designees

relating to a person sentenced to an offense as set forth under this paragraph

may not be considered an adjudication under 2 Pa.C.S. Chs. 5 Subch. A and

7 Subch. A.

Id. § 6139(a)(3.3)(i)-(ii). Subsequently, this section was amended to replace the word “inmate”

with “offender.” See id.

10

It appears that this amendment was in effect when the Board denied Brown’s application

for parole on December 17, 2020, and that the Board erroneously informed Brown that he could

apply for parole again in one year. See Notice of Bd. Decision at 1. This apparent error does not

impact our analysis.

4

On February 23, 2022, Brown filed a timely petition with the Board,

purporting to seek administrative relief.11 It is unclear from the petition for review

or the documents provided whether the Board responded to that petition.

Brown then filed this petition for review, asserting four counts: (1) 61

Pa.C.S. § 6139(a)(3.3) constitutes an ex post facto punishment; (2) the Board mailing

its decision to a third-party address in Florida violated Department of Corrections

policies and deprived him of the right to timely challenge the decision; (3) the

Board’s decision did not contain findings and reasoning for the denial in violation

of “existing laws requiring agencies to place reasons” in writing and that such a

failure prevents an appellate tribunal from making an appropriate determination; and

(4) the Board’s denial unlawfully compelled Brown to continue serving his term,

unlawfully extended his sentence, and deprived him of the enjoyment of parole, in

violation of the Pennsylvania and United States Constitutions. See Pet. for Rev., ¶¶

7-21. The Board filed preliminary objections, which we address seriatim.12

II. DISCUSSION

When reviewing preliminary objections to petitions for review in our

original jurisdiction, we “must treat as true all well-pleaded, material and relevant

facts together with any reasonable inference[s] that can be drawn from those facts.”

Cnty. of Berks v. Pa. Off. of Open Recs., 204 A.3d 534, 539 n.7 (Pa. Cmwlth. 2019)

(citations omitted). We are not required to accept as true “conclusions of law,

unwarranted inferences from facts, expressions of opinion or argumentative

11

Brown asserts that he had 30 days to challenge the Board’s conduct and was prevented

from timely filing, but the documents provided reflect that he filed his petition 20 days after the

decision.

12

Brown’s brief in response to the Board’s objections was due October 31, 2022. See

Order, 12/9/22. On December 9, 2022, this Court issued an order directing Brown to file his brief

on or before December 27, 2022, or we would proceed without his brief. See id. As of the date of

the filing of this opinion, Brown has not filed a brief.

5

allegations.” See id. “[W]here any doubt exists as to whether the preliminary

objections should be sustained, the doubt must be resolved in favor of overruling the

preliminary objections.” Pa. State Lodge, Fraternal Ord. of Police v. Dep’t of

Conservation & Nat. Res., 909 A.2d 413, 416 (Pa. Cmwlth. 2006).

A. Improper Party13

Initially, the Board objects that it is an improper party to this action.

See Prelim. Objs., ¶¶ 8-10. According to the Board, it lacks any interest in

implementing the law, pointing to the statutory language used in the amended

Section 6139, which provides that the Board “shall not be required to consider nor

dispose of an application by an offender” for a specified period. See id.

A “demurrer is a preliminary objection to the legal sufficiency of a

pleading and raises questions of law[.]” Raynor v. D’Annunzio, 243 A.3d 41, 52

(Pa. 2020) (cleaned up). “When ruling on a demurrer, a court must confine its

analysis to the [petition for review].” Torres v. Beard, 997 A.2d 1242, 1245 (Pa.

Cmwlth. 2010). The demurrer “admits every well-pleaded fact in the [petition for

review] and all inferences reasonably deducible therefrom.” Id. “Thus, the court

may determine only whether, on the basis of the [petitioner’s] allegations, he or she

possesses a cause of action recognized at law.” Fraternal Ord. of Police Lodge No.

5 by McNesby v. City of Philadelphia, 267 A.3d 531, 541 (Pa. Cmwlth. 2021). We

sustain a demurrer only when the law undoubtedly precludes recovery; if doubt

13

In support of this preliminary objection, the Board cites Pa.R.Civ.P. 1028(a)(4). This

Court has considered whether the attorney general was an improper party in the context of a

demurrer. See Golden Triangle News, Inc. v. Corbett, 700 A.2d 1056, 1060 (Pa. Cmwlth. 1997).

More recently, this Court sustained a preliminary objection that the Governor was an improper

party to an action under Pa.R.Civ.P. 1028(a)(5). See Pa. Env’t Def. Found. v. Commonwealth,

285 A.3d 702, 709 (Pa. Cmwlth. 2022).

6

exists, we should overrule the demurrer. Bilt-Rite Contractors, Inc. v. The

Architectural Studio, 866 A.2d 270, 274 (Pa. 2005).

The interest in enforcing and defending a statute “belongs to the

government official who implements the law.” Allegheny Sportsmen’s League v.

Ridge, 790 A.2d 350, 355 (Pa. Cmwlth. 2002). In this context, our courts have

interpreted “implements the law” as the party who has “a duty or obligation” to

enforce or defend the challenged statute. See City of Pittsburgh v. Commonwealth,

535 A.2d 680, 683 (Pa. Cmwlth. 1987), aff’d, 559 A.2d 513 (Pa. 1989).

In Allegheny Sportsmen’s League, several petitioners filed a petition for

review seeking declaratory and injunctive relief, alleging that the state was violating

the Pennsylvania Uniform Firearms Act of 199514 by maintaining a handgun sales

database. See Allegheny Sportsmen’s League, 790 A.2d at 351-52. The petition for

review named, as respondents, the Governor of Pennsylvania in his official capacity,

the Commissioner of the Pennsylvania State Police in his official capacity, and the

Pennsylvania State Police. See id. The Commonwealth filed preliminary objections,

asserting that the Governor was not a proper party to the action because, although

he is charged with “the broad enforcement responsibility” to ensure that the laws of

this Commonwealth are “faithfully executed, the interest in enforcing and defending

the act in question belongs to the government official who implements the law.” See

id. at 355. This Court sustained the objection and dismissed the Governor from the

suit, holding that the State Police were charged with administering and enforcing the

Firearms Act. See id. Further, the Court noted that the “executive interest” was

adequately represented by the State Police Commissioner as an authorized delegate.

See id.

14

18 Pa.C.S. §§ 6101-6128.

7

Instantly, the Board is an independent administrative board established

for the purpose of granting and revoking paroles to certain offenders in the

Commonwealth. See 61 Pa.C.S. § 6111(a). The Board consists of nine members

appointed by the Governor, presided over by a Board chairperson. See id. §§ 6111-

6112. The Board is charged, with respect to offenders, with the exclusive power to

(1) “parole and reparole, commit and recommit for violations of parole and to

discharge from parole all persons sentenced by any court at any time to

imprisonment in a State correctional institution”; (2) establish “special conditions of

supervision for paroled offenders”; and (3) “promulgate regulations establishing

general conditions of supervision applicable to every paroled offender.” See id. §

6132(a)(1)-(4).

Although it is correct that Section 6139(a)(3.3) provides that the Board

need not consider an offender’s application for three years following its last parole

decision, if the offender has been convicted of certain enumerated offenses, the

Board retains the exclusive power of enforcement and implementation of parole and

the regulations thereof. See id. § 6132(a)(1)-(4). Thus, the Board is the “government

official” charged with the ultimate responsibility of enforcing and administering the

provisions of the Code relating to parole “as well as defending the act.” See

Allegheny Sportsmen’s League, 790 A.2d at 355. Accordingly, we overrule the

objection as stated. Pa. State Lodge, Fraternal Ord. of Police, 909 A.2d at 416.

B. Failure to Exhaust Statutory Remedies

Next, pursuant to Pa.R.Civ.P. 1028(a)(7), the Board objects that Brown

has failed to exhaust his administrative remedies. See Prelim. Objs., ¶¶ 11-13.

According to the Board, the plain language of the Code provides the Board with six

8

months to dispose of “an application.” See id. (citing 61 Pa.C.S. § 6139(a)(7)).15

The Board suggests that because six months had not elapsed between Brown’s filing

of his petition for administrative relief on February 23, 2022, and his petition for

review to this Court, filed May 27, 2022, Brown has failed to exhaust his

administrative remedies.16 See id. ¶¶ 11-13.

This Court has previously explained that “[t]he doctrine of exhaustion

prohibits prospective parties to administrative agency actions from bypassing that

process and challenging the administrative action directly in the courts.” See

Gardner v. Dep’t of Env’t Res., 658 A.2d 440, 445 (Pa. Cmwlth. 1995). It is “more

efficient” to “allow an agency to proceed uninterrupted until its conclusion so that it

can find facts, apply its expertise and exercise its discretion,” as well as to allow the

agency an opportunity to correct its own mistakes. See id. Thus, the doctrine of

exhaustion promotes agency autonomy. See Merriam v. Phila. Hist. Comm’n, 777

A.2d 1212, 1219 (Pa. Cmwlth. 2001).

Instantly, we reject the Board’s assertion that Brown filed an

application for parole subject to 61 Pa.C.S. § 6139(a)(7). Rather, in his petition for

review, Brown asserts that amendments to Section 6139(a) deprived him of an

opportunity to file applications for parole annually and that this deprivation imposes

unconstitutional ex post facto punishment. See Pet. for Rev., ¶¶ 7-12.

In addition to its errant reliance on Section 6139(a)(7), the Board cites

several cases. See Prelim. Objs., ¶¶ 11-13. Upon review, these cases are inapposite,

as all concern applications for parole rather than petitions seeking some other form

15

Section 6139(a)(7) provides that “[t]he [B]oard shall dispose of an application within six

months of its filing.” See 61 Pa.C.S. § 6139(a)(7). The Board interprets this language to

encompass all applications for relief submitted to the Board. See Prelim. Objs., ¶¶ 11-13.

16

Six months from February 23, 2022, is August 23, 2022.

9

of administrative review. See, e.g., Gillespie v. Pa. Bd. of Prob. & Parole, 505 A.2d

403 (Pa. Cmwlth. 1986) (quashing a petition for review filed in this Court less than

six months after an inmate’s request for a parole interview, which the Board viewed

as an application for parole); Giddings v. Tartler, 567 A.2d 766 (Pa. Cmwlth. 1989)

(denying an inmate’s motion for judgment on the pleadings because his underlying

petition for review was filed in this Court merely one day after his application to the

Board); Marshall v. Jacobs, 575 A.2d 971 (Pa. Cmwlth. 1990) (dismissing a petition

for review because an inmate had filed an application for parole approximately nine

months before his minimum parole date and was, thus, premature).17

The Board has misconstrued Brown’s claim and failed to cite relevant

authority to support its preliminary objection. Section 6139(a)(7) of the Code is not

applicable to Brown’s claim, and the Board has not identified any relevant

administrative process of which Brown has failed to avail himself. Accordingly, we

overrule the objection as stated. Pa. State Lodge, Fraternal Ord. of Police, 909 A.2d

at 416.

C. Demurrer – Failure to State a Claim

Finally, the Board objects that mandamus relief is unavailable to

Brown. See Prelim. Objs., ¶¶ 14-16. We discern two bases for this demurrer. First,

according to the Board, it was not required to consider his application for parole.

See id., ¶¶ 14-15. Because its consideration of Brown’s application was

discretionary, the Board asserts that Brown cannot establish a clear right to relief.

17

The cited cases refer to an outdated version of the Code, Section 22 of the Parole Act,

Act of August 6, 1941, P.L. 861, as amended, formerly 61 P.S. § 331.22, repealed by the Act of

August 11, 2009, P.L. 147. Both the prior version of the Code and the current version of the Code,

however, provide that (1) the Board has the power to grant parole on its own or applications for

parole by an offender or offender’s attorney and (2) the Board shall dispose of “an application”

within six months of its filing. See Section 22 of the Parole Act, formerly 61 P.S. § 331.22

(repealed); 61 Pa.C.S. § 6139.

10

See id. Second, according to the Board, Section 6139(a)(3.3) is not an

unconstitutional ex post facto law. See id., ¶¶ 15-16.

“A proceeding in mandamus is an extraordinary action at common law,

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.” Bronson v. Pa. Bd. of Prob.

& Parole, 421 A.2d 1021 (Pa. 1980); see also Leonardo v. Pa. Bd. of Prob. & Parole

(Pa. Cmwlth., No. 156 M.D. 2021, filed Mar. 17, 2023) (unpublished mem.).18

“Mandamus will not lie in a purely discretionary act.” Coady v. Vaughn, 770 A.2d

287, 290 (Pa. 2001).

1. Mandamus and the Board’s Discretion

The Board has been granted broad discretion in parole matters. Rogers

v. Pa. Bd. of Prob. & Parole, 724 A.2d 319, 322 (Pa. 1999). Because the grant or

denial of parole is discretionary, claims related to decisions of the Board are not

normally suited to review by mandamus. Coady, 770 A.2d at 290. The Pennsylvania

Supreme Court has explained further that “while a court may direct that discretion

be exercised, it may not specify how that discretion is to be exercised nor require the

performance of a particular discretionary act.” Id. (emphasis in original). “Thus,

mandamus will not lie where the substance of the [B]oard’s discretionary action is

the subject of the challenge.” Id.

Regarding the Board’s first basis for this demurrer, we briefly note the

following. The Board has correctly asserted that the grant or denial of parole is a

18

This Court’s memorandum opinions are not binding precedent but may be cited for their

persuasive value. Section 414(a) of the Commonwealth Court’s Internal Operating Procedures,

210 Pa. Code § 69.414(a); see also, e.g., Johnson v. Pa. Bd. of Prob. & Parole, 300 A.3d 525, 528

(Pa. Cmwlth. 2023) (citing several unreported decisions for the settled rule that an appeal from a

revocation order is moot upon the expiration of a parolee’s maximum term).

11

discretionary act and that, accordingly, mandamus cannot compel a grant of parole.

See id. Nevertheless, the Board has misconstrued Brown’s claims. Brown does not

aver that he filed an application for parole or that such application was denied. His

principal averments are that recent amendments to Section 6139(a) have deprived

him of the right to apply for parole, that this deprivation constitutes an ex post facto

violation, and that this violation sounds in mandamus. Pet. for Rev., ¶ 12. Therefore,

we overrule this objection as stated. See Coady, 770 A.2d at 290; Pa. State Lodge,

Fraternal Ord. of Police, 909 A.2d at 416.

2. Ex Post Facto Violations

Our Supreme Court has recognized a limited exception to the general

rule that parole matters are ill-suited to mandamus review. “Where . . . discretionary

actions and criteria are not being contested but rather the actions of the [B]oard taken

pursuant to changed statutory requirements are being challenged, an action for

mandamus remains viable as a means for examining whether statutory requirements

have been altered in a manner that violates the ex post facto clause.”19 Coady, 770

A.2d at 290; see Toland v. Pa. Bd. of Prob. & Parole, 263 A.3d 1220, 1233 (Pa.

Cmwlth. 2021); Leonardo, slip op. at 9-10.

A prohibited ex post facto law “imposes a punishment for an act which

was not punishable at the time it was committed or imposes additional punishment

to that then prescribed.” Cimaszewski v. Pa. Bd. of Prob. & Parole, 868 A.2d 416,

422 (Pa. 2005) (cleaned up); Toland, 263 A.3d at 1233; Leonardo, slip op. at 10.

19

Section 9 of Article I of the United States Constitution provides that “[n]o . . . ex post

facto Law shall be passed.” U.S. Const. art. I, § 9, cl. 3 (emphasis added). Section 17 of article I

of the Pennsylvania Constitution states that “[n]o ex post facto law . . . shall be passed.” Pa. Const.

art. I, § 17 (emphasis added).

12

There are two critical elements: (1) the law must be retrospective, and (2) it must

disadvantage the offender.20 Cimaszewski, 868 A.2d at 423.

The first element is clearly met. Brown was convicted of third-degree

murder in 2001. In November 2020, the General Assembly amended procedural

requirements relevant to the parole of inmates convicted of certain enumerated

offenses, including murder in the third degree. See 61 Pa.C.S. § 6139(a)(3.3). The

Board relied on these amendments when it informed Brown that it was not required

to consider his serial application for parole within three years of a prior disposition.

Thus, because the amendments apply to Brown’s parole eligibility, they are

retrospective. See Cimaszewski, 868 A.2d at 423; see also, e.g., Cal. Dep’t of Corr.

v. Morales, 514 U.S. 499 (1995) (finding 1981 amendments to parole code

retrospective when applied to the respondent, who was convicted of murders in 1971

and 1980 and became eligible for parole in 1990).

For the second element, an inmate must establish that the change in the

law “creates a significant risk of prolonging his incarceration.” Cimaszewski, 868

A.2d at 427. There is no precise definition of what constitutes a sufficient risk of

increased punishment, but “speculative and attenuated possibilities of increasing

punishment . . . do not suffice.” Id. Thus, where a new rule “by its own terms” does

not show a significant risk of increased punishment, an inmate must demonstrate “by

evidence drawn from the rule’s practical implementation, that its retroactive

application would result in a longer period of incarceration than under the earlier

rule.” Id. (cleaned up).

20

The Cimaszewski Court relied on Weaver v. Graham, 450 U.S. 24 (1981). In Weaver,

the United States Supreme Court clarified that “a law need not impair a ‘vested right’ to violate

the ex post facto prohibition.” 450 U.S. at 29.

13

Here, Brown does not plead that he can provide the requisite evidence

that he faces a significant risk of an increase in punishment by application of the

Section 6139(a) amendments. See generally Pet. for Rev. Even viewed in the light

most favorable to Brown, we infer no intent by Brown to plead a fact-intensive

inquiry as envisioned by the Cimaszewski Court. See generally id. Rather, Brown

proceeds from a mistaken premise that the amendments prohibit him from

submitting an application for parole. For example, Brown avers that he “is entitled

to the issuance of mandamus from this Court to compel [the] Board to refrain from

denying him the entitlement to apply for parole review/consideration based on the

recent enactment of [Section] 6139, supra.” Id., ¶ 10. He further admits that he

“does not have any right to being paroled by [the] Board, he does, by being eligible

for the same, have the right to apply for parole.” Id., ¶ 12. Thus, Brown seemingly

views the plain terms of the Section 6139(a) amendments as punitive because those

amendments purportedly impede his right to apply for parole.

Of course, Brown is mistaken. Nothing in the amendments to Section

6139(a) altered, hindered, or otherwise prohibited Brown or any other similarly

situated inmate from applying for parole. Moreover, nothing in these amendments

precludes the Board from considering Brown’s application for parole filed less than

three years after a prior denial. Absent evidence demonstrating that the practical

implementation of Section 6139(a)(3.3) results in a longer period of incarceration,

we conclude that the amendments merely grant the Board greater discretion in

reviewing serial applications for parole.

In support of its demurrer, the Board cites Rauso v. Pennsylvania Board

of Probation and Parole, 762 A.2d 774 (Pa. Cmwlth. 2000). In that case, the

petitioner was serving a 5-to-10-year sentence in state custody, which was to be

14

followed by four years of federal supervision. Rauso, 762 A.2d at 774-75. The

petitioner applied to the Board for parole so he could begin accruing credit toward

his federal sentence, but the Board denied him parole more than once. See id. at 775.

Following one of his applications, the Board responded to the petitioner by letter

explaining that pursuant to former Section 22 of the Code,21 the Board would defer

any consideration of the petitioner’s latest application until one year had elapsed

since its last parole decision. See id.

The petitioner then sought mandamus relief in this Court, asserting that

former Section 22 violated the ex post facto clause. Id. The action was premised

upon the petitioner’s apparent belief that he was entitled to parole as soon as he had

reached his minimum sentence date and that any delay incurred due to the Board’s

reliance on former Section 22 impermissibly increased his punishment. See id. The

Rauso Court summarily rejected his claim, noting that the petitioner “is still serving

his [5-to-10-year] sentence.” Id. Because the Rauso Court did not consider the most

recent amendments to Section 6139(a) and because it offered little substantive

analysis, it provides little persuasive value to this case.

More recently, however, this Court considered a similar petition for

review in Leonardo. In that case, a prisoner was serving a sentence for rape and

involuntary deviate sexual intercourse. See Leonardo, slip op. at 2. After reaching

his minimum sentence, the prisoner twice applied for parole, and the Board denied

his applications. After the second denial, the legislature amended Section 6139(a)

to include subsection (3.3). Following a third application, the Board informed the

21

Former Section 22 of the Act of August 6, 1941, P.L. 861, as amended, formerly 61 P.S.

§ 331.22 (repealed). Although it is unclear from the Rauso Court’s analysis, it appears that former

Section 22 added the one-year deferral period after judgment of sentence was imposed on Rauso.

15

prisoner of the new, three-year deferral period and declined to review his application.

See id. at 2-3.

The prisoner filed a petition for review in mandamus, asserting that

Section 6139(a)(3.3) violated the constitutional prohibition against ex post facto

laws. See id. at 3-5. According to the prisoner, the new deferral period unlawfully

extended his incarceration. See id. at 9. As in Rauso, the Court rejected this claim.

See id. at 9-11. The Leonardo Court observed that, although a prisoner’s minimum

sentence date triggers parole eligibility, his “actual sentence . . . is his maximum

sentence.” Id. at 12 (cleaned up). Thus, in applying Section 6139(a)(3.3), “the

Board did not inflict a new or greater punishment than he was originally given.” Id.

The Leonardo Court further observed that Section 6139(a)(3.3) did not alter the

criteria for evaluating a prisoner’s suitability for parole. See id. at 12-13 (discussing

Morales, 514 U.S. at 507).

Here, Brown has not claimed that Section 6139(a)(3.3) has altered

criteria for securing a reduction in his sentencing range, nor do we discern any

factual allegations that would support such a claim. See generally Pet. for Rev.

Nevertheless, we note that in support of its denial of Brown’s parole in December

2020, the Board considered Brown’s “institutional behavior, including reported

misconducts”; his “risk and needs assessment”; a “negative recommendation made

by the Department of Corrections”; “reports, evaluations and assessments/level of

risk indicat[ing] [his] risk to the community”; his “minimization/denial of the nature

and circumstances of the offense(s) committed”; his “refusal to accept responsibility

for the offense(s) committed”; his “lack of remorse for the offense(s) committed”;

“the negative recommendation made by the trial judge”; and “the negative

recommendation made by the prosecuting attorney.” Notice of Bd. Decision at 1

16

(capitalization removed). Nothing in Section 6139(a)(3.3) alters these

considerations.

Accordingly, because Brown cannot state a claim for mandamus relief

on these grounds, we sustain the preliminary objection. Bilt-Rite Contractors, Inc.,

866 A.2d at 274.

III. CONCLUSION

For the foregoing reasons, we overrule the Board’s preliminary

objections contending that it is an improper party and that Brown failed to exhaust

his statutory remedies. We sustain the preliminary objection by demurrer.

Accordingly, we dismiss Counts I and IV from Brown’s petition for review.22

LORI A. DUMAS, Judge

22

The Board’s preliminary objections did not address Brown’s second and third counts,

namely, that the Board erred by mailing his decision to a third-party address and by failing to

support its decision with reasons in writing. See Pa.R.Civ.P. 1028(b) (requiring all preliminary

objections to be raised at one time); see also Pa.R.Civ.P. 1032 (a party waives all objections which

are not presented by preliminary objection, answer, or reply); see also Pa.R.A.P. 1516(b) (noting

that every pleading filed after an original jurisdiction petition for review shall be filed within 30

days after service of the preceding pleading).

17

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jamie Brown, :

Petitioner :

:

v. : No. 312 M.D. 2022

:

Pennsylvania Board of Probation :

and Parole, :

Respondent :

ORDER

AND NOW, this 1st day of February, 2024, the Pennsylvania Parole Board’s

(Board) preliminary objections alleging that it is an improper party to this appeal and

that Jamie Brown (Brown) failed to exhaust administrative remedies are

OVERRULED. The Board’s preliminary objection by demurrer is SUSTAINED.

Counts I and IV are DISMISSED from Brown’s petition for review. The Board shall

file an answer to the remaining counts within 30 days of the date of this order.

LORI A. DUMAS, Judge