The opinion of the court was delivered by: Senior Judge Friedman
Submitted: January 29, 2010
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.
Elias Nieves (Nieves) has filed a petition for review (Petition) in this court's original jurisdiction against the Pennsylvania Board of Probation and Parole (Board).*fn1 Nieves and the Board each seek summary relief. We grant summary relief to the Board and deny summary relief to Nieves.
Nieves is a convicted sex offender incarcerated at the State Correctional Institution in Coal Township (SCI-Coal). On May 30, 2008, the Board issued a decision to parole Nieves to a Community Corrections Center (CCC) for a minimum of nine months upon his completion of a sex offender program. (Petition, ex. B.) As a result, the Department of Corrections (Department) placed Nieves on a waiting list for one of fifty beds reserved for sex offenders in the Department's CCCs.
On February 2, 2009, following the adoption of new procedures for the release of violent offenders, the Board modified its decision, stating that Nieves would be released on parole "upon completion of [a] sex offender program to a specialized CCC with violence prevention programming.." (Petition, ex. C.) As a result of this change, the Department placed Nieves on a waiting list for one of ten beds reserved for violent sex offenders in the Department's specialized CCCs.
On March 5, 2009, Nieves filed his Petition with this court, asserting that the Board informed Nieves that he will need a home plan before he can receive a CCC bed date;*fn2 however, the Board rejected all of his home plan proposals because the residences were too close to schools. Nieves points out that: (1) section 9798 of Megan's Law*fn3 does not prohibit sexually violent predators from living close to schools; (2) section 9798 requires only that notice be given to schools when sexually violent predators live nearby; and (3) although Nieves is a sex offender, there has been no determination that he is a sexually violent predator under Megan's Law.*fn4
Nieves also asserts that, even though the Board rejected his home plan proposals, 61 P.S. §315*fn5 states that a prisoner who has served his minimum sentence cannot be detained based on his inability to procure a satisfactory sponsor.
Nieves seeks an order in mandamus compelling the Board to issue an order releasing him on parole. Nieves argues that the Board has a duty to do so because: (1) 61 P.S. §315 requires it; (2) the Board violated his ex post facto rights when it modified its parole decision on February 2, 2009, increasing the time he must spend in prison waiting for a CCC bed date; and (3) the Board violated his substantive due process rights by arbitrarily modifying its parole decision after deciding in its May 30, 2008, decision that his release on parole would pose no risk to society.
The Board filed preliminary objections to the Petition, but later withdrew them. The Board subsequently filed an answer to the Petition with new matter. In its new matter, the Board alleged the following undisputed facts.*fn6
In July 1987, Nieves raped a twenty-five-year-old woman at knifepoint in her home. Nine days later, Nieves raped a twelve-year-old girl at knifepoint. The following year Nieves was convicted of, and sentenced for, rape, statutory rape, indecent assault, involuntary deviate sexual intercourse, corruption of the morals of a minor, terroristic threats and recklessly endangering another person. He received an aggregated sentence of sixteen years and eleven months to forty years.*fn7
On May 30, 2008, the Board issued a decision to grant Nieves parole to a CCC on the condition that he completes a sex offender program.*fn8 The Board's decision stated that Nieves was required to have an approved home plan prior to his release from the CCC residency. The Board then requested a CCC bed date from the Department. Nieves submitted five home plans to the Board, but the Board rejected them pursuant to a Board policy stating that a sex offender's home plan may not be within 1,000 feet of a school, day care center or playground when one of the sex offender's victims was under eighteen years of age at the time of the offense.*fn9
On February 2, 2009, the Board amended its conditional grant of parole to require Nieves to spend time at a specialized CCC with violence prevention programming after Nieves completes a sex offender program. Nieves has completed a sex offender program, and the Board is now waiting for a specialized CCC bed date from the Department before the Board actually releases Nieves on parole.
In its new matter, the Board argues that mandamus does not lie to compel the Board to issue a release order because: (1) the legislature has repealed 61 P.S. §315, and, thus, the provision gives Nieves no clear right to immediate release on parole; (2) the Board's modification of its parole decision to require Nieves to spend time at a specialized CCC is not a law and, thus, does not violate his ex post facto rights; and (3) the Board's modification of its parole decision does not violate the due process rights of Nieves because Nieves has no liberty interest in parole until he is actually released on parole. Nieves filed a reply to the new matter, rejecting the Board's arguments. The Board and Nieves now seek summary relief.
Mandamus is an extraordinary writ available to compel performance of a ministerial duty where there exists a clear legal right in the plaintiff, a corresponding duty in the defendant and the lack of any other adequate and appropriate remedy. ...