decided: February 23, 1989.
FRANKLIN L. CASTLE, PETITIONER
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT
Original Jurisdiction, Appeal in the case of Franklin L. Castle v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole.
Franklin L. Castle, petitioner, for himself.
Robert A. Greevy, Chief Counsel, with him, Arthur R. Thomas, Assistant Chief Counsel, for respondent.
Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino.
[ 123 Pa. Commw. Page 571]
Franklin L. Castle (Petitioner) has filed a petition for review and an application for summary relief in this court's original jurisdiction against the Pennsylvania Board of Probation and Parole (Board) seeking declaratory and injunctive relief. The Board has filed a preliminary objection in the nature of a demurrer. For the reasons set forth below, we sustain the Board's preliminary objection, deny Petitioner's application for summary relief, and dismiss Petitioner's petition for review.
Petitioner is currently serving a life sentence for second degree murder*fn1 at a state correctional institution, and has served approximately thirteen (13) years of this sentence. Petitioner has also served approximately eleven (11) years on a concurrent life sentence for assault, which he committed while incarcerated on the original conviction. On March 23, 1988, Petitioner submitted an inmate request slip to the correctional institution parole officer, requesting to be staffed for parole. On March 24, 1988, the parole officer informed Petitioner that he could not be listed for parole staffing because of his life sentence. Petitioner then sent a letter to the Board requesting
[ 123 Pa. Commw. Page 572]
to be staffed for parole, which request the Board refused by letter dated April 6, 1988. This proceeding was thereafter filed in this court on April 14, 1988.
In this case of first impression, Petitioner contends that he is entitled to apply for parole and have his application considered by the Board by virtue of 42 Pa. C.S. § 9756(c)(1-3). Petitioner asserts that this section creates a statutory right of parole eligibility for life prisoners convicted of any offense other than first degree murder and certain summary offenses. Further, Petitioner argues that in the absence of a statute establishing a minimum sentence for prisoners serving life sentences for offenses other than first degree murder, a minimum sentence of one (1) day should be implied. Finally, Petitioner contends that, assuming this court determines that he is eligible to apply for parole, the Board has violated his due process rights by refusing to consider him for parole.
The Board, in its preliminary objection in the nature of a demurrer, asserts that Petitioner has failed to state a claim upon which relief can be granted, alleging that because Petitioner is serving a life sentence, the Board cannot consider him for parole because it can only parole an individual after the expiration of a minimum term of imprisonment and Petitioner's minimum term is life. The Board also argues that Petitioner is essentially challenging the legality of his sentence and that he is not entitled to declaratory relief with respect to this challenge in an action against the Board.
[ 123 Pa. Commw. Page 573]
Initially, we note that a preliminary objection in the nature of a demurrer will be sustained only where a complaint is clearly insufficient to establish any right to relief; any doubt must be resolved in favor of the pleader. County of Allegheny v. Commonwealth of Pennsylvania, 507 Pa. 360, 490 A.2d 402 (1985). A demurrer admits as true all well-pleaded facts. Department of General Services Page 573} v. Celli-Flynn, 115 Pa. Commonwealth Ct. 494, 540 A.2d 1365 (1988).
In considering Petitioner's prayer for summary relief, we are mindful that summary relief may not be granted unless the moving party is entitled to judgment as a matter of law. See Aiken v. Radnor Township Board of Supervisors, 83 Pa. Commonwealth Ct. 190, 476 A.2d 1383 (1984). For summary relief to be granted, it must be clear that there are no issues of material fact and any doubt must be resolved in favor of the non-moving party. See Wolgemuth v. Kleinfelter, 63 Pa. Commonwealth Ct. 395, 437 A.2d 1329 (1981). With the above standards of review in mind, we now turn to Petitioner's application for summary relief and the Board's preliminary objection.
The Board contends that Petitioner has failed to state a claim upon which relief can be granted, alleging that Petitioner cannot be paroled until the expiration of the minimum term of his sentence.*fn2 The Board asserts that Petitioner's life sentence has a minimum term of life and, that, therefore he will never be eligible for parole. Petitioner contends that his life sentence is a flat maximum sentence and that, in the absence of a statute fixing a minimum term for second degree murder, a minimum of
[ 123 Pa. Commw. Page 574]
one day should by implied.*fn3 In ruling upon the Board's preliminary objection, then, the first issue which we must address is whether Petitioner's life sentence for second degree murder constitutes a minimum sentence or a flat maximum with an implied minimum of one day.
The legislature has provided that a person convicted of second degree murder shall be sentenced to a term of life imprisonment. 18 Pa. C.S. § 1102(b). Under principles of statutory construction, the word "shall" in a statute is generally regarded as mandatory, rather than directory. City of Pittsburgh v. Haffner, 80 Pa. Commonwealth Ct. 53, 471 A.2d 116 (1984). We also note that, in contrast, the legislature has provided that, in determining the sentence to be imposed, a court shall, except where a mandatory minimum sentence is otherwise provided by law, consider and select one or more of the
[ 123 Pa. Commw. Page 575]
following alternatives: probation, a determination of guilt without further penalty, partial confinement, total confinement, or a fine. 42 Pa. C.S. § 9721(a). Section 9721 also states that, in selecting from the foregoing alternatives, the court shall balance the need to protect the public, the gravity of the offense as it relates to the impact on the life of the victim as well as the community, and the rehabilitative needs of the defendant. 42 Pa. C.S. § 9721(b). Construing these two provisions together, we conclude that by enacting section 1102(b), the legislature intended to remove a trial court's discretion to impose a lesser sentence in the case of a defendant convicted of second degree murder.*fn4
Petitioner asserts that section 1102(b) does not state a minimum term, contending that, unlike the mandatory minimum sentences for offenses committed with firearms, offenses committed on public transportation, and sentences for second and subsequent offenses, section 1102(b) fails to employ the words "not less than" or "at least." See 42 Pa. C.S. §§ 9712-9714.*fn5 However, a minimum sentence has been defined as the least severe sentence which may be imposed. Black's Law Dictionary 898 (5th ed. 1979). As noted above, section 1102(b) states that the sentence of life imprisonment shall be imposed for the offense of second degree murder. A sentencing
[ 123 Pa. Commw. Page 576]
court may not sentence a second degree murderer to a lesser term. Accordingly, we conclude that the absence of the magic words "not less than" or "at least" does not render Petitioner's sentence something other than a mandatory minimum.
Petitioner contends that notwithstanding the mandate of section 1102(b), he is entitled to apply for parole by virtue of 42 Pa. C.S. § 9756(c), alleging that this provision establishes parole eligibility for persons serving life sentences for all offenses other than first degree murder and certain summary offenses. Section 9756(c) provides in pertinent part:
Except in the case of murder of the first degree, the court may impose a sentence to imprisonment without the right to parole only when:
(1) a summary offense is charged;
(2) sentence is imposed for nonpayment of fines or costs, or both, in which case the sentence shall specify the number of days to be served; and
(3) the maximum term or terms of imprisonment imposed on one or more indictments to run consecutively or concurrently total less than 30 days.
42 Pa. C.S. § 9756(c). As noted above, the Board refused to consider Petitioner for parole because he was serving a life sentence. Section 21 of the Act of August 6, 1941, P.L. 861, as amended, 61 P.S. § 333.21, prohibits the Board from paroling life prisoners. Petitioner contends that 42 Pa. C.S. § 9756(c) impliedly repeals that prohibition insofar as it relates to prisoners serving life sentences for offenses other than first degree murder because section 9756(c) was enacted after both 18 Pa. C.S. § 1102(b) and section 21, 61 P.S. § 333.21.*fn6 Petitioner asserts that
[ 123 Pa. Commw. Page 577]
the prohibition against parole for the enumerated offenses creates a right to parole in all other cases not addressed by the above provision.
However, we note that section 9756 does not have as its stated purpose the creation of eligibility for parole nor does it refer to the power of the Board to parole, but states only what a trial court may or may not do when imposing a sentence in certain instances. Section 21, 61 P.S. § 333.21, specifically prohibits the Board from paroling a prisoner condemned to death or life imprisonment. In addition, section 21 prohibits the Board from paroling any prisoner before the expiration of the minimum term of a sentence. There is a presumption against implied repeal; only if a later law is irreconcilable may it be held to effect a repeal by implication. Pittsburgh v. Public Utility Commission, 3 Pa. Commonwealth Ct. 546, 284 A.2d 808 (1971). Because the above statutes are not clearly irreconcilable, we conclude that 42 Pa. C.S. § 9756(c) does not impliedly repeal section 21, 61 P.S. § 333.21. We hold that section 9756(c) does not affirmatively create a right to apply for parole enforceable before the Board in this case. As a matter of law, therefore, Petitioner has not demonstrated entitlement to summary relief.
[ 123 Pa. Commw. Page 578]
Accordingly, we sustain the Board's preliminary objection, deny Petitioner's application for summary relief, and dismiss Petitioner's petition for review.
And Now, February 23, 1989, the preliminary objection of the Pennsylvania Board of Probation and Parole in the above-captioned matter is sustained, Petitioner's application for summary relief is denied, and Petitioner's petition for review is dismissed.