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RICKY COUNTS v. COMMONWEALTH PENNSYLVANIA (01/30/85)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 30, 1985.

RICKY COUNTS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT

Appeal from the Order of the Pennsylvania Board of Probation and Parole in the case of Ricky Counts, Parole No. 8568-K.

COUNSEL

Lewis J. Bott, Assistant Public Defender, for petitioner.

Robert A. Greevy, Chief Counsel, with him, Arthur R. Thomas, Assistant Chief Counsel, Jay C. Waldman, General Counsel, and LeRoy S. Zimmerman, Attorney General, for respondent.

Judges Rogers and Williams, Jr., and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 87 Pa. Commw. Page 278]

This is an appeal by Ricky Counts (Counts) who petitions for review of an Order of the Pennsylvania Board of Probation and Parole (Board) which denies his application for parole.*fn1 We affirm.

[ 87 Pa. Commw. Page 279]

Counts was originally sentenced in 1976 to a term of three to seven years by the Court of Common Pleas of Dauphin County following his conviction for the offense of Robbery.*fn2 This sentence had an initial maximum term expiration date of July 4, 1983. Counts was granted parole on this sentence effective March 20, 1980 which allowed him to begin serving a detainer sentence.*fn3 The Board granted Counts parole on the detainer sentence effective September 20, 1980 at which time he was released from confinement.

[ 87 Pa. Commw. Page 280]

A short time after his release from prison, Counts was arrested by Dauphin County authorities and charged with Prostitution.*fn4 Following his conviction on that charge, the Board revoked Counts' parole and recommitted him to prison as a convicted parole violator to serve nine months back time. Counts was again granted parole on the Robbery sentence effective June 11, 1982 at which time he was released from custody. On July 23, 1982, Counts was arrested by Harrisburg Police and charged with Prostitution. He was convicted of that charge in Dauphin County Common Pleas Court on October 21, 1982 and sentenced to a term of four to twelve months. The Board afforded Counts a Revocation Hearing at Dauphin County Prison after which it again revoked his parole and ordered him recommitted as a convicted parole violator to serve nine months back time. The Board set a tentative reparole date of August 8, 1983 and extended the maximum term expiration date of Counts' Robbery sentence to February 5, 1985.*fn5

On August 5, 1983, Counts was interviewed by a member of the Board for possible parole. Prior to that interview, Counts had been charged with the offense of Assault by Prisoner*fn6 and had received a prison misconduct. As a result of that behavior and Counts' poor institutional record, the Board set back Counts' tentative reparole date to April 4, 1984. Between October 20, 1983 and January 31, 1984, Counts received an additional five institutional misconducts.

[ 87 Pa. Commw. Page 281]

On March 8, 1984, Counts was interviewed for possible parole by Board member William Forbes. As a result of that interview, on April 23, 1984 the Board recorded an Order rescinding Counts' tentative reparole date of April 4, 1984 and denied him parole on the Dauphin County Robbery sentence.*fn7 Counts sought administrative relief from the Board regarding its denial of his parole application. The Board informed Counts that its administrative relief regulation, 37 Pa. Code ยง 71.5(h), applies only to the Board's revocation orders and denied him relief. Counts then filed a timely petition for review with this Court.

In this appeal, Counts contends that the procedure employed by the Board to deny his application for parole violates his right to due process of law guaranteed by the Fourteenth Amendment. Specifically, Counts contends that he was entitled to an adversary-type hearing complying with the requirements of Morrissey v. Brewer, 408 U.S. 471 (1972), before the Board could deny him parole. Next, he argues that due process requires that he be permitted to examine his record with the institution and with the Board prior to his parole hearing so that he may inspect and

[ 87 Pa. Commw. Page 282]

    be prepared to challenge any unfavorable information which may be considered by the Board. We will address these issues in that order.

We initially take due notice of the fact that the order from which Counts seeks relief is a Board action denying a prisoner's application for parole, not an order revoking an existing parole. It is now well-settled that under Pennsylvania law, a prisoner has no constitutionally-protected liberty interest in the expectation of being released from confinement on parole prior to the expiration of his sentence's maximum term. Commonwealth v. Brittingham, 442 Pa. 241, 275 A.2d 83 (1971); Blair v. Pennsylvania Board of Probation and Parole, 78 Pa. Commonwealth Ct. 41, 467 A.2d 71 (1983), cert. denied, U.S. , 104 S.Ct. 2358 (1984); cf. Jago v. Van Curen, 454 U.S. 14 (1981) (question of whether a prisoner has a liberty interest in the expectation of parole is dependent upon state law). It is also well-settled that the General Assembly has granted the Board broad discretion in parole matters. Commonwealth v. Vladyka, 425 Pa. 603, 229 A.2d 920 (1967); Bradshaw v. Pennsylvania Board of Probation and Parole, 75 Pa. Commonwealth Ct. 90, 461 A.2d 342 (1983); Barlip v. Pennsylvania Board of Probation and Parole, 45 Pa. Commonwealth Ct. 458, 405 A.2d 1338 (1979). In recognition of the broad grant of discretion which the Board enjoys in parole matters and that the parole release decision is a highly subjective one, our scope of review of a Board order denying a parole application is limited to a determination of whether the Board failed to exercise any discretion at all, whether the Board arbitrarily and capriciously abused its discretion so as to amount to a violation of a constitutional right, and whether or not the procedure utilized by the Board violated any

[ 87 Pa. Commw. Page 283]

    constitutional rights of the prisoner. See generally Kastner v. Pennsylvania Board of Probation and Parole, 78 Pa. Commonwealth Ct. 157, 467 A.2d 89 (1983); Banks v. Pennsylvania Board of Probation and Parole, 4 Pa. Commonwealth Ct. 197 (1971). Despite having once been granted parole on this sentence by the Board, Counts stands in no better position than any other prisoner in applying for parole before the Board. The Board's recommitment order revoking his parole and mandating that he serve back time stripped him of his status as a parolee whereby he lost his constitutionally-protected liberty interest. The tentative reparole date set by the Board is the administrative equivalent of a recomputed minimum term and only sets a new parole eligibility date, it does not vest any right to a grant of parole upon reaching that date. Krantz v. Pennsylvania Board of Probation and Parole, 86 Pa. Commonwealth Ct. 38, 483 A.2d 1044 (1984).

A review of the decisions of this Court and of the United States Supreme Court since 1981 convinces us that Counts' claim of entitlement of an adversary Morrissey hearing on his parole application is without merit to the point of being frivolous. It is now well-settled that prisoner does not have a right to a Morrissey due process hearing prior to having his parole application denied or having an unexecuted parole rescinded. Jago v. Van Curen; Franklin v. Pennsylvania Board of Probation and Parole, 83 Pa. Commonwealth Ct. 318, 476 A.2d 1026 (1984); Jones v. Pennsylvania Board of Probation and Parole, 81 Pa. Commonwealth Ct. 194, 473 A.2d 247 (1984). The parole interview afforded Counts by the Board is sufficient to satisfy due process.

Counts' second constitutional challenge to the Board's denial of his parole application is based upon

[ 87 Pa. Commw. Page 284]

    his inability to review his file with the institution and with the Board prior to his March 8, 1984 parole interview. Counts desired to inspect his file so that he could discover any unfavorable information contained therein and challenge or rebut that information at his parole interview. The denial of the opportunity to do so, Counts contends, amounts to a denial of due process. We disagree.

Despite Counts' claim to the contrary, a prisoner does not have a right under Pennsylvania law to review his file with the institution or with the Board prior to being considered for parole. Gahagan v. Pennsylvania Board of Probation and Parole, 444 F. Supp. 1326 (E.D. Pa. 1978); see also Wiley v. United States Board of Parole, 380 F. Supp. 1194 (M.D. Pa. 1974); Barradale v. United States Board of Parole and Pardons, 362 F. Supp. 338 (M.D. Pa. 1973) (due process does not require that a federal prisoner eligible for parole consideration be permitted to examine his institutional or Board file); Annot., 44 A.L.R. Fed. 390 (1979). The cases relied on by Counts are from other jurisdictions and our review of them finds that those decisions are based upon the applicable state law.*fn8 Accordingly, we held that under Pennsylvania law, a prisoner who is eligible for parole consideration does not have a right to inspect his file at the institution or with the Board in order to discern unfavorable information contained therein prior to his parole interview.*fn9 There was no violation of Counts'

[ 87 Pa. Commw. Page 285]

    constitutional rights as a result of his inability to inspect his files.

Having found that the Board did not violate any constitutional rights and in view of the broad discretion enjoyed by the Board in parole matters, we will affirm the Board's order denying Counts' parole application.

Order

And Now, the 30th day of January, 1985, the Order of the Pennsylvania Board of Probation and Parole at Parole No. 8568-K, dated April 23, 1984, which denies parole to Ricky Counts is hereby affirmed.

Disposition

Affirmed.


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