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08/12/97 LOUIS MICKENS-THOMAS v. COMMONWEALTH

August 12, 1997

LOUIS MICKENS-THOMAS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, BOARD OF PROBATION AND PAROLE AND WILLIAM F. WARD, CHAIRMAN, COMMONWEALTH OF PENNSYLVANIA, BOARD OF PROBATION AND PAROLE, RESPONDENTS



Before: Honorable Bernard L. McGINLEY, Judge, Honorable Dan Pellegrini, Judge, Honorable Charles P. Mirarchi, Jr., Senior Judge. Opinion BY Senior Judge Mirarchi.

The opinion of the court was delivered by: Mirarchi

ORIGINAL JURISDICTION

OPINION BY

SENIOR JUDGE MIRARCHI

FILED: August 12, 1997

Before this Court is a motion for peremptory judgment and summary relief filed by Louis Mickens-Thomas (Thomas), a sixty-eight year old inmate at the State Correctional Institution at Graterford, in his action in mandamus against the Pennsylvania Board of Probation and Parole and its chairman (collectively, Board).

On November 26, 1996, Thomas filed a petition for review in the nature of an action in mandamus invoking this Court's original jurisdiction. The following facts alleged by Thomas are undisputed. In 1993, while serving a term of life imprisonment for his conviction of first degree murder, Thomas applied for a commutation of his sentence with the Pennsylvania Board of Pardons (Board of Pardons). In July 1994, the Board of Pardons recommended, after a public hearing, that Thomas' sentence be commuted from life imprisonment to a minimum term of thirty-one years, nine months, six days to life.

On January 14, 1995, the then Governor Robert Casey commuted Thomas' sentence as recommended by the Board of Pardons. Pursuant to the commutation order, Thomas' minimum term of the commuted sentence was to expire on July 21, 1996, and he "may be eligible for pre-release consideration at the discretion of the Dept. of Corrections." The Department of Corrections subsequently refused to accept Thomas into a prerelease program. Thomas then filed an application for parole in July 1996, when his commuted minimum term expired.

In a letter dated September 25, 1996, the Board informed Thomas that it would not take action on his application because he was ineligible for parole under Section 34.1(a)(3) of the Act of August 6, 1941, P.L. 861, as amended, added by the Act of June 1, 1995, P.L. 1020, commonly known as the Parole Act (Act), 61 P.S. § 331.34a(a)(3). Section 34.1(a)(3), which was added as part of the 1995 amendment to the Act and became effective on July 31, 1995, provides in pertinent part:

In no case shall the board act upon an application of an inmate whose term of imprisonment was commuted from life to life on parole or upon an inmate who was serving a term of imprisonment for a crime of violence or is an inmate serving a sentence under 42 Pa. C.S. § 9712 (relating to sentences for offenses committed with firearms) unless the inmate has served at least one year in a prerelease center. (Emphasis added.)

The Board stated in the letter that it would not consider Thomas' application until it is notified by the Department of Corrections that he has completed at least one-year service in a prerelease center, as required by Section 34.1(a)(3).

Thomas then filed the action in mandamus, seeking this Court's order directing the Board (1) to immediately release him on parole or in the alternative, (2) to immediately consider and rule on his application for parole. Thomas alleged that he is not subject to the requirements set forth in Section 34.1(a)(3) because that section became effective after his sentence was commuted on January 14, 1995, and that a retroactive application of Section 34.1(a)(3) to his request for parole would violate (1) the ex post facto clauses of the United States and Pennsylvania Constitutions; (2) the principle of separation of powers and the Governor's exclusive power to grant commutations under Article IV, Sections 2 and 9 of the Pennsylvania Constitution, and (3) his due process rights and liberty interests in the effectuation of the commutation order.

Thomas further asserted that the Board failed to comply with Section 21 of the Act in effect before the 1995 amendment, which provided in pertinent part:

If the Board of Parole refuse to parole the prisoner at the expiration of any minimum term fixed by the Pardon Board, it shall, within ten days after the date when the minimum term expired, transmit to the Pardon Board a written statement of the reasons for refusal to parole the prisoner at the expiration of the minimum term fixed by the Pardon Board. Thereafter, the Pardon Board may either accept the action of the Board of Parole, or order the ...


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