decided: July 2, 1985.
JOSEPH JAMIESON, PETITIONER
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT
Original Jurisdiction in case of Joseph Jamieson v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole.
Joseph Jamieson, petitioner, for himself.
Arthur R. Thomas, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, for respondent.
Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.
[ 90 Pa. Commw. Page 320]
Joseph Jamieson invokes this Court's original jurisdiction*fn1 and asks for relief in the nature of a writ of mandamus to compel the Pennsylvania Board of Probation and Parole (Board) to recompute the maximum term expiration dates of his two 1970 Erie County sentences. The Board had previously filed preliminary objections in the nature of a demurrer which were overruled. Jamieson v. Pennsylvania Board of Probation and Parole (Jamieson I), 83 Pa. Commonwealth Ct. 546, 478 A.2d 152 (1984). The case is presently before us on Jamieson's motion for summary judgment.
The pertinent facts of this case are not in dispute and can be summarized as follows. Jamieson was sentenced on June 2, 1970 in the Court of Common Pleas of Erie County to a term of five to ten years following his conviction for Robbery by Assault by Force.*fn2 At the same time, he received a consecutive ten to twenty year sentence as a result of his conviction for
[ 90 Pa. Commw. Page 321]
Rape.*fn3 These sentences had an effective date of January 28, 1970. Upon his reception at the Western Diagnostic and Classification Center at the State Correctional Institution at Pittsburgh (SCI-Pittsburgh), the minimum and maximum terms of the Robbery and the Rape sentence were aggregated pursuant to the mandate of Section 1 of the Act of June 25, 1937*fn4 to a single term of fifteen to thirty years. That fifteen to thirty year sentence had a minimum term expiration date of January 28, 1985 and a maximum term expiration date of January 28, 2000. Jamieson was granted parole by the Board on this aggregated sentence effective January 28, 1985 at which time he was released from SCI-Pittsburgh to reside in the City of Pittsburgh.
Jamieson contends in this action that the aggregation of his two Erie County sentences into a single fifteen to thirty year sentence denied him equal protection of the laws in violation of the Fourteenth Amendment to the Federal Constitution. His equal protection challenge is based upon the application of former 19
[ 90 Pa. Commw. Page 322]
P.S. § 897 only to sentences imposed at the same time by the same court. Had his two sentences been imposed by two different courts or on two different days, he argues, his maximum term expiration date would be shortened by five years to January 28, 1995 rather than January 28, 2000.
On these facts, Jamieson is clearly not entitled to a writ of mandamus. It is a well-settled proposition that mandamus is an extraordinary writ which is available only to compel the performance of a ministerial act or a mandatory duty where there exists a clear legal right in the plaintiff, a corresponding duty in the defendant, and the want of any other adequate and appropriate remedy. Unger v. Hampton Township, 437 Pa. 399, 263 A.2d 385 (1970); Donnell v. Pennsylvania Board of Probation and Parole, 61 Pa. Commonwealth Ct. 517, 434 A.2d 846 (1981). Jamieson concedes that the Board acted properly under former 19 P.S. § 897 when it aggregated his two sentences. Jamieson's challenge, therefore, is not to the Board's computation of his maximum term under former 19 P.S. § 897, his challenge is to the constitutionality of that statute as applied to him. In essence, what he is attempting to do by his mandamus action is to compel the Board to treat his two Erie County sentences as two separate consecutive sentences in violation of the mandate of former 19 P.S. § 897. This is not a proper use of mandamus. The purpose of mandamus is not to establish legal rights, but to enforce those rights which are already established. Hamm v. Board of Education for the School District of Philadelphia, 79 Pa. Commonwealth Ct. 547, 470 A.2d 189 (1984). It is clear that the use of mandamus to compel public officials to act in violation of a statutory duty is not the proper procedure for testing the constitutionality of a statute. Booz v. Reed, 398 Pa. 172, 157 A.2d 170 (1960). Absent
[ 90 Pa. Commw. Page 323]
a prior judicial invalidation of former 19 P.S. § 897, Jamieson's right to have his two Erie County sentences treated as separate consecutive sentences is not clear and mandamus is inappropriate. See Unger. As we noted in Hamm, we are bound by our Supreme Court's reasoning in Philadelphia Presbytery Homes, Inc. v. Abington Board of Commissioners, 440 Pa. 299, 269 A.2d 871 (1970), wherein Justice Pomeroy wrote:
[W]here it is necessary to establish the invalidity of an ordinance before the right sought to be vindicated by the plaintiff in mandamus can be said to exist, the right is not sufficiently "clear" to form the basis upon which to issue the writ.
Id. at 303, 269 A.2d at 873. Therefore, Jamieson is not entitled to a writ of mandamus in that his right to the relief he seeks is not sufficiently "clear."
Our determination that Jamieson has not stated a proper cause in mandamus does not require that we dismiss his action.*fn5 As noted by Judge Blatt in Jamieson I, the allegations of his complaint stated an equal protection claim sufficient to survive the Board's demurrer. However, rather than being an action properly addressed to our original jurisdiction, his equal protection challenge is an appeal from a determination of a Commonwealth administrative agency addressed to our appellate jurisdiction.*fn6 Accordingly,
[ 90 Pa. Commw. Page 324]
we shall treat his motion for summary judgment as a motion for summary relief under Pa. R.A.P. 1532(b).*fn7
The Board now contends that since Jamieson was not paroled on any of his 1970 Erie County sentences until January 28, 1985, the expiration of his aggregated minimum term, a ruling by this Court that those sentences should not have been aggregated would have no practical or legal effect upon those sentences.*fn8 See Cunningham v. Pennsylvania Board of Probation and Parole, 39 Pa. Commonwealth Ct. 229, 394 A.2d
[ 90 Pa. Commw. Page 3251315]
(1978) (parolee's challenge to the aggregation of his multiple sentences made after parole was granted following the expiration of his aggregated minimum term came too late to be of any practical or legal effect as to those sentences). Accordingly, the Board argues that this issue is now moot as to Jamieson and we need not address the merits of his equal protection challenge. We disagree.
We agree with the Board's argument that under Pennsylvania law, a prisoner does not have a constitutional right to parole, automatically upon the expiration of his minimum term and that the granting of parole is a matter of grace and administrative discretion. Commonwealth v. Brittingham, 442 Pa. 241, 275 A.2d 83 (1971); Counts v. Pennsylvania Board of Probation and Parole, 87 Pa. Commonwealth Ct. 277, 487 A.2d 450 (1985). However, a prisoner does have the right to apply for parole upon the expiration of his minimum term and have that application fairly considered by the Board. Krantz v. Pennsylvania Board of Probation and Parole, 86 Pa. Commonwealth Ct. 38, 483 A.2d 1044 (1984); Banks v. Pennsylvania Board of Probation and Parole, 4 Pa. Commonwealth Ct. 197 (1971). Under his aggregated sentence, Jamieson was not permitted even to apply for parole upon the expiration of his first minimum term and there is no indication in the record that he would not have been paroled at that time.*fn9 Also, our resolution of his
[ 90 Pa. Commw. Page 326]
equal protection challenge could have an impact upon his ultimate maximum term expiration date and the amount of time he is under the Board's supervision.*fn10 Therefore, his appeal is not moot and the issue is ripe for our consideration.
We shall now turn to the merits of Jamieson's equal protection challenge to former 19 P.S. § 897. An extensive discussion of the mechanics of this statute as well as Jamieson's equal protection challenge appears in Judge Blatt's opinion in Jamieson I and need not be repeated at length here. See 83 Pa. Commonwealth Ct. at 548-550, 478 A.2d at 153-155. The
[ 90 Pa. Commw. Page 327]
essence of his contention is that former 19 P.S. § 897, as applied by our Superior Court's decision in Commonwealth ex rel. Lycett v. Ashe, 145 Pa. Superior Ct. 26, 20 A.2d 881 (1941) (statute applies only to two or more consecutive sentences imposed at the same time by the same court), treats two similarly situated individuals differently depending solely upon when and by whom they were sentenced. An individual, such as Jamieson, whose sentences were aggregated under the statute, would have a longer total maximum term than would an individual who has consecutive sentences which are not aggregated. This difference is due to the availability of "constructive parole"*fn11 to the individual with consecutive sentences which allows a partial overlap of those sentences. Jamieson contends that this disparate treatment of similarly situated offenders bears no rational relationship to any legitimate state objective and thus violates the guarantee of equal protection contained in the Fourteenth Amendment to the Federal Constitution. This issue seems to be one of first impression.
[ 90 Pa. Commw. Page 328]
We begin our analysis of Jamieson's constitutional challenge with the well-settled principle that enactments of the General Assembly enjoy a strong presumption of constitutionality and that a statute will not be declared unconstitutional unless it clearly, palpably and plainly violates either the Federal or Pennsylvania Constitution. United States v. Geller, 560 F. Supp. 1309 (E.D. Pa. 1983); Hayes v. Erie Insurance Page 328} Exchange, 493 Pa. 150, 425 A.2d 419 (1981). Any party challenging the constitutionality of a statute bears a heavy burden and a court must resolve any doubts in favor of sustaining the statute's constitutionality. Daly v. Pennsylvania Horse Racing Commission, 38 Pa. Commonwealth Ct. 77, 391 A.2d 1134 (1978); Singer v. Sheppard, 33 Pa. Commonwealth Ct. 276, 381 A.2d 1007 (1978).
The equal protection clause of the Fourteenth Amendment does not require that the state deal with all persons in an identical manner. Williams v. Rhodes, 393 U.S. 23 (1968); United States ex rel. Souder v. Watson, 413 F. Supp. 711 (M.D. Pa. 1976); Stottlemyer v. Stottlemyer, 458 Pa. 503, 329 A.2d 892 (1974). Legislative classifications will only be subject to strict judicial scrutiny, requiring a compelling state interest to pass muster, if the classification involves a fundamental right or a suspect class. Otherwise, the classification will pass constitutional muster if it bears some rational relationship to a legitimate state purpose. Benner v. Oswald, 592 F.2d 174 (3d Cir. 1979), cert. denied, 444 U.S. 832 (1979). We are satisfied that the statute challenged here neither involves a fundamental right*fn12 nor do convicted offenders who receive consecutive sentences at the same time in the same court qualify as a "discrete and insular group" in need of extraordinary protection from the majoritarian political process. Cf. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307
[ 90 Pa. Commw. Page 329]
(1976) (traditional "suspect" classes are race, alienage, and ancestry, among others, but do not include age). Therefore, in order to be found constitutional, the classification set forth in former 19 P.S. § 897 need only be shown to bear some rational relationship to a legitimate state objective. We think it does.
In Commonwealth ex rel. McGinnis v. Ashe, 330 Pa. 289, 199 A. 185 (1938), the Pennsylvania Supreme Court found that former 19 P.S. § 897 provides corrections authorities with the statutory authority to lump two or more consecutive sentences into one. The Court noted that while multiple consecutive sentences have always been imposed separately, the General Assembly could mandate that they be treated as one and, by enacting former 19 P.S. § 897, did so. The General Assembly, by enacting this statute, was directly responding to a prior Pennsylvania Supreme Court case in which the Court held that, under the Act of June 19, 1911 (Parole Act of 1911), P.L. 1055, as amended, repealed by the Act of April 28, 1978, P.L. 202, a prisoner with consecutive sentences must apply for constructive parole at the expiration of each sentence in order to commence serving the next consecutive sentence. In Commonwealth ex rel. Lynch v. Ashe, 320 Pa. 341, 182 A. 229 (1936), the Court held that a prisoner was only entitled to apply for parole at the expiration of his initial minimum term. Only if that application was favorably acted upon by the Board would the prisoner commence serving his second sentence. Otherwise, the prisoner would have been deemed to have served the maximum term of the initial sentence before he commences serving the second sentence. Id. at 343-344, 182 A. at 230.
The Superior Court, in Lycett, specifically found that it is within the province of the General Assembly to classify crimes and to fix the minimum and maximum
[ 90 Pa. Commw. Page 330]
punishments for such crimes. The necessity or wisdom of such acts is a question for the General Assembly's determination and that such act did not violate Article V, § 1, of the Constitution of 1874 which vested the judicial power of the Commonwealth in the courts. 145 Pa. Superior Ct. at 28-29, 20 A.2d at 883. The purpose, then, of former 19 P.S. § 897 was to overrule the Supreme Court's decision in Lynch and to require prisoners with multiple consecutive sentences to apply for parole only once at the expiration of their aggregated minimum term while also preserving the original maximum terms of those multiple sentences. While the Superior Court in Lycett did not specifically address Jamieson's equal protection concerns, we feel that the discussion of the reasons why former 19 P.S. § 897 was enacted by the General Assembly is instructive for our disposition of that issue.
The purpose of former 19 P.S. § 897 was to allow corrections authorities to combine multiple consecutive sentences as a single sentence for purposes of parole eligibility and to preclude the necessity of prisoners having to apply for constructive parole at the expiration of each of their various minimum terms and relieved the Board from having to act on those multiple parole applications. While noting that a prisoner's actual sentence is the maximum term imposed by the trial court, McClure v. Pennsylvania Board of Probation and Parole, 75 Pa. Commonwealth Ct. 176, 461 A.2d 645 (1983), former 19 P.S. § 897 specifically preserves the various maximum terms of the aggregated sentences.
We likewise have no argument with the applicability of former 19 P.S. § 897 to prisoners whose consecutive sentences were imposed by the same court while being inapplicable to those prisoners whose consecutive sentences were imposed by different courts.
[ 90 Pa. Commw. Page 331]
See Lycett, 145 Pa. Superior Ct. at 31, 20 A.2d at 884. The General Assembly can treat individuals who commit multiple offenses within a single jurisdiction differently from those whose offenses span multiple jurisdictions without violating equal protection. While the judiciary may not agree with the conclusions reached by the General Assembly, the issue is one for its determination and we cannot hold that its resolution of the issue is irrational. Accordingly, we find that former 19 P.S. § 897 bears a rational relationship to a legitimate state objective, namely that of effective administration of the corrections and parole system while also preserving the integrity of consecutive sentences imposed by the trial court, and that, therefore, Jamieson's equal protection challenge to former 19 P.S. § 897 must fail.
Having found no violation of Jamieson's constitutional rights nor error of law committed by the Board, we shall affirm the Board's order.
And Now, this 2nd day of July, 1985, the action in mandamus filed by Joseph Jamieson shall be treated as a petition for review from a determination of a Commonwealth agency addressed to our appellate jurisdiction under 42 Pa. C.S. § 763 and the motion for summary judgment filed by him shall be treated as a motion for summary relief under Pa. R.A.P. 1532(b). Upon consideration of the merits, Joseph Jamieson's motion for summary relief is denied and the order of the Pennsylvania Board of Probation and Parole, which calculated the aggregated maximum term expiration date of his aggregated Erie County sentences at January 28, 2000, is hereby affirmed.
Motion denied. Order of Board affirmed.