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MACK KING v. COMMONWEALTH PENNSYLVANIA (12/02/87)

decided: December 2, 1987.

MACK KING, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE AND THOMAS FULCOMER, RESPONDENTS



Appeal from the Order of the Pennsylvania Board of Probation and Parole in the case of Mack King, Parole No. 5731-M, dated November 13, 1985.

COUNSEL

Mack King, for himself.

Arthur R. Thomas, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, for respondent.

Judges MacPhail and Barry, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 111 Pa. Commw. Page 393]

This is a pro se petition for writ of mandamus which essentially contends that the Pennsylvania Board of Probation and Parole (the Board) on or about November 13, 1985, notified petitioner of a decision denying him parole. Petitioner contends, in his argument, that the reason for this denial is his effort to assist fellow prisoners in their legal problems. In a per curiam order dated February 26, 1986, this Court ordered that the case be treated as a petition for review in the nature of an appeal from a denial of parole addressed to this Court's appellate jurisdiction. The Board has filed a motion to quash contending that, although the Board denied the parole after sua sponte consideration, the petitioner had no right to be considered for parole since he had not filed an application for parole. Since the record does not show any application for parole filed by petitioner, the

[ 111 Pa. Commw. Page 394]

    motion to quash must be granted. In the interest of judicial economy in the likely event that petitioner will or has already filed an application for parole, we will address his contention that he is entitled to a review of the action of the Board in refusing his parole.

This Court has held that the Board has discretion to grant or deny parole because parole, being a matter of administrative discretion and determination, is non-judicial and not generally subject to judicial review under the law of Pennsylvania. Barnhouse v. Pennsylvania Board of Probation and Parole, 89 Pa. Commonwealth Ct. 512, 492 A.2d 1182 (1985). Much broader in its implications is the case of Reider v. Pennsylvania Board of Probation and Parole, 100 Pa. Commonwealth Ct. 333, 514 A.2d 967 (1986). That case held that what the Board decides and why, being wholly a matter of the Board's discretion, is simply not subject to judicial review. Reider cites the case of Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979) for the following proposition:

In Greenholtz, the United States Supreme Court stated that a decision by a parole board as to whether or not a parole should be granted may be made for a variety of reasons, sometimes involving no more than an informed prediction as to what would best serve the safety and welfare of the inmate and the community.

100 Pa. Commonwealth Ct. at 341, 514 A.2d at 971.

Our opinion in Reider did not discuss another aspect of the Greenholtz opinion. A majority of the U.S. Supreme Court concluded that there was no constitutionally protected "conditional liberty" interest recognized by the Supreme Court in Morrissey v. Brewer, 408 U.S. 471 ...


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