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In Toland v. Pennsylvania Board of Probation and Parole, 263 A.3d 1220 (Pa. Cmwlth. 2021), an inmate claimed that the Board relied on inaccurate information about the number of rape convictions in his record.
Summary of this case from Wells v. Pa. Parole Bd.Opinion
No. 315 M.D. 2018
09-29-2021
Christopher TOLAND, Petitioner v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent
Christopher Toland, Pro Se. John C. Manning, Deputy Chief Counsel, Harrisburg, for Respondent.
Christopher Toland, Pro Se.
John C. Manning, Deputy Chief Counsel, Harrisburg, for Respondent.
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION BY JUDGE COHN JUBELIRER Christopher Toland (Petitioner), pro se, has filed an Amended Petition for Review/Mandamus (Amended Petition) in this Court's original jurisdiction, claiming: (1) the Pennsylvania Board of Probation and Parole (Board) violated Petitioner's due process rights by relying on false information in denying Petitioner parole; (2) the Board violated Petitioner's due process rights by exercising its discretion in an arbitrary and capricious manner; and (3) the Board's application of the standards for parole of the Prisons and Parole Code, 61 Pa.C.S. §§ 6101 - 6164 (Parole Code), violated the ex post facto prohibitions of both the United States and Pennsylvania Constitutions. Petitioner seeks mandamus relief, requesting that this Court compel the Board to produce all information relied upon by the Board in denying Petitioner's parole, to remove all false information from Petitioner's file, to prepare revised information to be used in Petitioner's case, and to immediately interview Petitioner for parole under the standards that existed at the time Petitioner committed the crimes.
Petitioner initiated this action by filing a "Petition for Review/Mandamus" (Original Petition) in this Court's original jurisdiction on April 25, 2018. Preliminary objections were filed to the Original Petition, which were overruled, and the Pennsylvania Board of Probation and Parole (Board) filed an Answer with New Matter, to which Petitioner responded, thereby closing the pleadings. Various motions and applications were filed by both parties, including an application to dismiss the action as moot filed by the Board and an application for summary relief filed by Petitioner based on the Original Petition. On September 11, 2020, we denied the application to dismiss and granted Petitioner leave to file an amended petition, which Petitioner did on October 5, 2020. Given that Petitioner filed the Amended Petition, the application for summary relief based on the Original Petition filed by Petitioner is now moot.
Subsequent to the commencement of this action, the Pennsylvania Board of Probation and Parole was renamed the Pennsylvania Parole Board. See Sections 15, 16, and 16.1 of the Act of December 18, 2019, P.L. 776, No. 115 (effective February 18, 2020); see also Sections 6101 and 6111(a) of the Prisons and Parole Code, as amended , 61 Pa.C.S. §§ 6101, 6111(a).
Section 9 of Article I of the United States Constitution provides that "[n]o...ex post facto Law shall be passed." U.S. Const. art. I, § 9. Section 17 of article I of the Pennsylvania Constitution states that "[n]o ex post facto law ... shall be passed." PA. Const. art. I, § 17.
Before the Court are the Board's Preliminary Objections to the Amended Petition, in which the Board argues that: (1) the Amended Petition lacks sufficient specificity, and, therefore, this Court should strike the allegations therein; (2) mandamus may not be used to review the Board's discretionary decision to not award parole; (3) Petitioner has not alleged sufficient facts to state a claim that the Board's refusal to grant parole constituted an ex post facto violation; and (4) Petitioner has not stated a substantive due process claim. Petitioner responds that the Board's Preliminary Objections are untimely and, even if timely, that the Amended Petition alleged sufficient facts to state both due process and ex post facto claims, which Petitioner maintains may be brought in mandamus actions. After review, we overrule the Board's Preliminary Objections because the Amended Petition's allegations were brought with sufficient specificity, Petitioner alleged sufficient facts to state an actionable ex post facto claim, and the Board has not shown that Petitioner has failed to state a substantive due process claim.
I. BACKGROUND
A. Change in the Parole Code
As the crux of the controversy in this matter concerns what statutory standards for parole should apply to guide the Board's exercise of its discretion in Petitioner's parole decisions, which have changed between the time Petitioner committed the crimes and the Board's decisions as to whether to parole Petitioner, a short summary of the changes to those standards for parole will be helpful. Prior to 1996, the Pennsylvania Board of Probation and Parole Law (Parole Law) provided a policy statement that read as follows:
The value of parole as a disciplinary and corrective influence and process is hereby recognized, and it is declared to be the public policy of this Commonwealth that persons subject or sentenced to imprisonment for crime shall, on release therefrom, be subjected to a period of parole during which their rehabilitation, adjustment, and restoration to social and economic life and activities shall be aided and facilitated by guidance and supervision under a competent and efficient parole administration, and to that end it is the intent of this act to create a uniform and exclusive system for the administration of parole in this Commonwealth.
Former Section 1 of the Parole Law (pre-1996 Parole Law), Act of August 6, 1941, P.L. 861, formerly 61 P.S. § 331.1, repealed by the Act of August 11, 2009, P.L. 147. In 1996, the General Assembly amended the Parole Law by making public safety the primary consideration. The 1996 version stated:
The parole system provides several benefits to the criminal justice system, including the provision of adequate supervision of the offender while protecting the public, the opportunity for the offender to become a useful member of society and the diversion of appropriate offenders from prison.
In providing these benefits to the criminal justice system, the [B]oard shall first and foremost seek to protect the safety of the public. In addition to this goal, the [B]oard shall address input by crime victims and assist in the fair administration of justice by ensuring the custody, control[,] and treatment of paroled offenders.
Former Section 1 of the Parole Law, as amended by Section 1 of the Act of December 18, 1996, P.L. 1098, formerly 61 P.S. § 331.1 (1996 Amendment) (emphasis added). This statement of public policy emphasizing public safety has continued in the present version of the Parole Code, which states that "the [B]oard ... and any other paroling entity shall first and foremost seek to protect the safety of the public." Section 6102(2) of the Parole Code, 61 Pa.C.S. § 6102(2).
With this statutory history in mind, we turn to the allegations of Petitioner's Amended Petition.
B. The Amended Petition
In the Amended Petition, Petitioner alleges as follows. Petitioner is currently incarcerated at State Correctional Institution at Laurel Highlands, serving an 11- to 40-year sentence for convictions of rape, aggravated indecent assault, and other offenses. (Amended Petition (Am. Pet.) ¶¶ 1, 109, 113; Original Petition (Orig. Pet.) ¶ 43. ) Since the expiration of Petitioner's 2004 minimum sentence date, Petitioner has been interviewed and denied parole 15 times. (Am. Pet. ¶¶ 8, 11, 14, Exhibit (Ex.) A.) In its August 24, 2017 decision, the Board denied Petitioner parole based on the following reasons: (1) risks and needs assessment indicating Petitioner's level of risk to the community; (2) reports, evaluations, and assessments/level of risk indicating risk to the community; and (3) Petitioner's lack of insight with regard to Petitioner's problematic thinking as it relates to Petitioner's high-risk behaviors. (Orig. Pet., Ex. A.) The Board directed Petitioner to complete the following for its consideration in Petitioner's next parole decision: (1) maintain a favorable recommendation for parole from the Department of Corrections (DOC); and (2) maintain a clear conduct record. (Id. )
Petitioner attempts to incorporate by reference to the Original Petition the allegations brought in paragraphs 38-50, 95-103, and 155-56 of that petition, as well as certain exhibits attached thereto, including all of the Board's previous parole decisions (Exhibit A), institutional programs completed (Exhibit C), pre-1996 and current Pennsylvania Parole Decision Making Guidelines scores (Exhibit D), and Department of Corrections (DOC) statistical data (Exhibit E). (See Am. Pet. ¶¶ 31, 43, 45, 53, 76, 78, 87, 91.) Recognizing that pro se litigants are held to more lenient standards and not the stringent standards expected of pleadings drafted by lawyers, we accept these paragraphs and exhibits as having been incorporated in the Amended Petition. Madden v. Jeffes , 85 Pa.Cmwlth. 414, 482 A.2d 1162, 1165 (1984).
Petitioner refers to the documents attached to the Amended Petition and Original Petition as "Appendix A," etc. We will refer to these documents as Exhibits.
On December 6, 2018, a Board Member and a Board Hearing Examiner interviewed Petitioner for parole. (Am. Pet. ¶ 11.) Prior to this interview, Petitioner had achieved each of the Board's directives from its August 24, 2017 parole decision by continuing to earn complete parole support from DOC and maintaining a clear conduct record. (Id. ¶ 12.) Nevertheless, on December 18, 2018, the Board issued a decision again denying Petitioner parole. (Id. , Ex. A.) In its December 18, 2018 decision, the Board explained it was denying Petitioner parole because: (1) Petitioner's failure to demonstrate a motivation for success; (2) the nature of the offense; and (3) Petitioner's past criminal history of domestic violence. (Id. ) In this decision, the Board indicated that Petitioner would be reviewed in or after August 2019 and that it would then again consider whether Petitioner had maintained a favorable recommendation for parole from DOC and whether Petitioner had a clear conduct record. (Id. )
A Board Member and a Board Hearing Examiner again interviewed Petitioner for parole on August 30, 2019. Once more, Petitioner had achieved the Board's previous directives "by continuing to earn complete DOC parole support and maintaining a clear conduct record." (Id. ¶ 14.) In its October 22, 2019 decision, however, the Board again denied Petitioner parole, explaining the reasons for the denial as: (1) Petitioner's risk and needs assessment indicating a level of risk to the community; (2) reports, evaluations, and assessments indicating a risk to the community; (3) the nature of the case; (4) the nature of risk posed; and (5) the need to have significant stability time and increased age as a protective factor. (Id. , Ex. B.) In this decision, the Board indicated that Petitioner next would be reviewed in or after September 2025 and once more explained that it would then consider whether Petitioner had maintained a favorable recommendation for parole from DOC and whether Petitioner had a clear conduct record. (Id. )
In the Amended Petition, Petitioner raises three distinct claims, all of which are brought through mandamus. First, Petitioner argues that the Board violated Petitioner's due process rights by relying on false information in denying him parole. To support this claim, which refers to multiple Board decisions in order to show a pattern, Petitioner avers that, under Monroe v. Thigpen , 932 F.2d 1437 (11th Cir. 1991), and Jubilee v. Horn , 975 F. Supp. 761 (E.D. Pa. 1997), a parole board's reliance on false information in denying parole may be grounds for a substantive due process claim. (Am. Pet. ¶¶ 29-30.) Petitioner claims that during the parole interview relevant to the August 24, 2017 decision, the Board's interviewer incorrectly stated that Petitioner had been convicted of four counts of rape and that Petitioner was "praying on society[,]" statements Petitioner alleges are "completely false" and unsupported by any documents in Petitioner's file. (Id. ¶¶ 31-32.) Petitioner maintains instead that he was charged with one count of rape and one count of aggravated indecent assault, both of which stemmed from a single incident. (Orig. Pet. ¶ 43.) Further, Petitioner alleges the Board's stated reasons for denying Petitioner parole in the December 18, 2018 decision, that Petitioner had a past criminal history with domestic violence, was likewise false, as Petitioner has "never been accused, investigated, arrested, charged, or convicted for any offense related to domestic violence." (Am. Pet. ¶¶ 33-34.) Additionally, the Amended Petition alleges that the documents in Petitioner's file must be incorrect, as shown by the Board's interviewer's statements and the Board's reasoning for denying parole, and that this false information adversely affected the Board's parole decisions. (Id. ¶ 36.) Accordingly, Petitioner claims that the Board's reliance on false statements in the parole interview and false information in Petitioner's file, as demonstrated by the factually incorrect reasoning in the December 18, 2018 decision, violates due process.
We have reordered Petitioner's claims for ease of discussion.
While not binding, decisions from the federal district and circuit courts may be cited for their persuasive value. Edinger v. Borough of Portland , 119 A.3d 1111, 1115 (Pa. Cmwlth. 2015).
Second, Petitioner claims that the Board's repeated application of the Parole Code's current standards, rather than the pre-1996 Parole Law, violated the ex post facto clauses of both the United States and Pennsylvania Constitutions. Pursuant to Garner v. Jones , 529 U.S. 244, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000), and California Department of Corrections v. Morales , 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995), Petitioner asserts that the application of the 1996 Amendment may be grounds for an ex post facto violation. (Id . ¶ ¶ 73-74.) Under the standard announced in Cimaszewski v. Pennsylvania Board of Probation and Parole , 582 Pa. 27, 868 A.2d 416 (2005), Petitioner contends that the 1996 Amendment constituted a retroactive change in policy that negatively impacts the length of Petitioner's incarceration and chance to be paroled. (Id. ¶ 76.) Because Petitioner contends he likely would have been paroled under the pre-1996 Parole Law, applying the 1996 Amendment to Petitioner's parole decisions violated the constitutional guarantees against ex post facto legislation. (Id. ¶¶ 75-76, 82-90.)
Specifically, in support of this ex post facto claim, Petitioner points to the Pennsylvania Parole Decision Making Guidelines (Guidelines), which provide a prediction of the likelihood of parole through a numerical score pursuant to criteria relevant to recidivism patterns and risks to the community. (Id. ¶ 77 (citing Richardson v. Pa. Bd. of Prob. & Parole , 423 F.3d 282 (3d Cir. 2005) ).) As to Petitioner's own scores, Petitioner has scored 7 out of 10 under the current Guidelines, which suggests refusing parole, but would score 6 out of 10 under the pre-1996 Guidelines, a score that Petitioner argues would recommend parole when supported by Petitioner's misconduct-free behavior and participation in institutional programming. (Id. ¶¶ 79-90.) Petitioner also alleges statistical data showing that, as a result of the application of the 1996 Amendment, Petitioner has served longer than similarly situated offenders served prior to 1996. (Id. ¶¶ 91-98.) As to the reasons provided for denying parole, Petitioner argues that the reasons referring to a "risk to the community" indicate that the Board is relying on the public safety policy in the 1996 Amendment. (Id. ¶¶ 99-100, 115.) Petitioner asserts that the application of the 1996 Amendment has elongated Petitioner's incarceration and puts Petitioner at risk of his incarceration being further lengthened, despite multiple factors that would have weighed in favor of parole under the pre-1996 Parole Law, including DOC's repeated recommendation that Petitioner be paroled, Petitioner's misconduct-free behavior and age, the time elapsed since Petitioner's criminal conduct, and participation in institutional programming. (Id. ¶¶ 110-19.)
Finally, Petitioner claims that the Board violated Petitioner's substantive due process rights by failing to exercise its discretion as mandated by law through its lack of consideration of the statutory standards for parole. (Id. ¶ 71.) While recognizing that mandamus may not be used to compel a discretionary act unless the exercise of that discretion was arbitrary, fraudulent, or based upon a mistaken view of the law under County of Allegheny v. Commonwealth , 507 Pa. 360, 490 A.2d 402 (1985), and Commonwealth ex rel. Lindsley v. Robinson , 30 Pa.Cmwlth. 96, 372 A.2d 1258 (1977), Petitioner asserts that mandamus is available to pursue constitutional violations and to compel the Board to correct a mistaken application of law, pursuant to Rogers v. Pennsylvania Board of Probation and Parole , 555 Pa. 285, 724 A.2d 319 (1999), and Reider v. Pennsylvania Board of Probation and Parole , 100 Pa.Cmwlth. 333, 514 A.2d 967 (1986). (Id. ¶¶ 37-39.) Under the Parole Code, Petitioner explains, the Board is required to consider:
(1) an offender's prison conduct; (2) the recommendation of the confining institution; (3) the nature and circumstance of the offense, any recommendation made by the judge and prosecuting attorney, and the prisoner's general character and background; (4) if there is any prior criminal history; (5) the result of a drug test prior to anticipated release and (6) submission of a satisfactory parole plan.
(Id. ¶¶ 40, 42 (citing Section 6135(a) of the Parole Code, 61 Pa.C.S. § 6135(a) ). ) Petitioner avers that the Board has continuously ignored Petitioner's rehabilitative, educational, and behavioral accomplishments while incarcerated and instead arbitrarily based its decisions only on the crimes committed some 28 years ago. (Id. ¶¶ 42-44.) Petitioner asserts that the Board's assessments for determining parole eligibility use static scores that cannot be changed and are based primarily on the crimes Petitioner committed, and, therefore, that the Board's denial of parole based on this unchangeable factor violates Greenholtz v. Inmates of Nebraska Penal and Correctional Complex , 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). (Id. ¶¶ 44, 53-56.) By ignoring positive evidence and relying on false information in Petitioner's file, Petitioner claims the Board failed to exercise its discretion as statutorily required, as Petitioner has done all that has been advised to reduce any risk of reoffending, such as maintaining DOC parole support and misconduct-free behavior, to no avail. (Id. ¶¶ 48, 50-52, 58-59, 61.) Petitioner maintains that the Amended Petition is not challenging how the Board exercises its discretion. The Amended Petition, instead, alleges that the Board's continuous denial of parole is due to Petitioner being a sex offender, regardless of whether Petitioner meets the requirements for parole, and, in doing so, the Board is not exercising its discretion at all as mandated by the Parole Code. (Id. ¶¶ 60, 66, 71-72.)
Section 6135(a) of the Parole Code states that the Board shall consider:
(1) The nature and circumstances of the offense committed.
(2) Any recommendations made by the trial judge and prosecuting attorney.
(3) The general character and background of the inmate.
(4) Participation by an inmate sentenced after February 19, 1999, and who is serving a sentence for a crime of violence as defined in 42 Pa.C.S. § 9714(g) (relating to sentences for second and subsequent offenses) in a victim impact education program offered by the [DOC].
(5) The written or personal statement of the testimony of the victim or the victim's family submitted under [S]ection 6140[, 61 Pa.C.S. § 6140 ] (relating to victim statements, testimony and participation in hearing).
(6) The notes of testimony of the sentencing hearing, if any, together with such additional information regarding the nature and circumstances of the offense committed for which sentence was imposed as may be available.
(7) The conduct of the person while in prison and his physical, mental and behavioral condition and history, his history of family violence[ ] and his complete criminal record.
61 Pa.C.S. § 6135(a).
Accordingly, Petitioner asks this Court to compel the Board to produce all information relied upon in denying parole, to remove all false information from Petitioner's file, to prepare revised information to be used in Petitioner's case, and to immediately interview Petitioner for parole under the standard set forth in the pre-1996 Parole Law.
C. Petitioner's Praecipe for Judgment by Default
On December 18, 2020, after serving a Notice of Default Judgment on the Board on December 11, 2020, Petitioner filed a Praecipe for Judgment by Default (Praecipe). Therein, Petitioner argued that the Board failed to comply with Pennsylvania Rule of Appellate Procedure 1516(b), Pa.R.A.P. 1516(b) (Rule 1516(b)), which requires responsive pleadings in this Court's original jurisdiction to be filed within 30 days after service of the preceding pleading. Three days after Petitioner filed the Praecipe, on December 21, 2020, the Board filed its Preliminary Objections.
D. The Board's Preliminary Objections
The Preliminary Objections offer the following grounds for dismissing the Amended Petition. First, the Board asserts that the allegations in the Amended Petition should be stricken due to insufficient specificity. Second, the Board demurs, arguing that: (1) mandamus may not be used to challenge the Board's discretion in refusing parole; (2) Petitioner has failed to allege sufficient facts to state an ex post facto claim; and (3) Petitioner has failed to state a due process claim challenging the Board's discretion in refusing parole as arbitrary and capricious, and not in accordance with its statutory mandates. Accordingly, the Board requests this Court sustain its Preliminary Objections and dismiss the Amended Petition. We note that the Board has not specifically challenged Petitioner's due process claim based on the allegation that the Board relied on false or incorrect information in denying Petitioner parole.
Petitioner filed an Answer to the Preliminary Objections, asserting consistent with the Praecipe that they should be stricken as untimely for failure to file within 30 days after service of the Amended Petition, and, alternatively, arguing that they should be overruled because the Amended Petition contained sufficient facts to support Petitioner's claims.
II. DISCUSSION
A. The Praecipe for Default Judgment
We first address Petitioner's argument that the Board's Preliminary Objections should be stricken because they were filed beyond the 30-day period provided by Rule 1516(b), which provides "[e]very pleading filed after an original jurisdiction petition for review shall be filed within 30 days after service of the preceding pleading[.]" Pa.R.A.P. 1516(b). Here, Petitioner filed the Amended Petition on October 9, 2020, and the Board did not file the Preliminary Objections until December 21, 2020, clearly beyond the 30-day period. The Board has not offered any response or explanation as to the untimeliness. Notwithstanding the Board's apparent indifference, we note that Rule 1516(b) may be interpreted as permissive rather than mandatory. See Mikkilineni v. Amwest Surety Ins. Co. , 919 A.2d 306, 314 (Pa. Cmwlth. 2007). It is within the Court's sound discretion "to permit a late filing of a pleading where the opposing party will not be prejudiced and justice so requires." Id. (quotations omitted). Such prejudice must flow from the fact that the pleading is offered late, rather than from the fact that the opposing party may lose the case on the merits should the pleading be permitted. Ambrose v. Cross Creek Condos. , 412 Pa.Super. 1, 602 A.2d 864, 868 (1992). Further, Pennsylvania Rule of Civil Procedure 126, Pa.R.C.P. No. 126, provides that "[t]he [C]ourt at every stage of [an] action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties." While this Court has the discretion to strike the Board's Preliminary Objections for untimeliness, given that Petitioner has not alleged any prejudice, we exercise our discretion in favor of allowing the untimely filing. Therefore, we will address the Board's Preliminary Objections in turn.
In general, Superior Court decisions are not binding on this Court, but they may be considered for their persuasive value. Lerch v. Unemployment Comp. Bd. of Rev. , 180 A.3d 545, 550 (Pa. Cmwlth. 2018).
B. Insufficient Specificity
The Board's first Preliminary Objection is that the Amended Petition failed to apprise the Board of the nature and extent of Petitioner's claims with sufficient specificity, and, therefore, the Board is entitled to have the allegations in the Amended Petition stricken. The Board argues that the Amended Petition "fails to set forth when, how, and in what way" its decisions violated the ex post facto prohibition and "makes the bold faced conclusion" that the application of the 1996 Amendment to the Parole Code to Petitioner constituted a violation. (Preliminary Objections ¶¶ 20-21.) We disagree.
Pennsylvania is a fact-pleading jurisdiction. Bricklayers of W. Pa. Combined Funds, Inc. v. Scott's Dev. Co. , 625 Pa. 26, 90 A.3d 682, 694 n.14 (2014) ; Richardson v. Wetzel , 74 A.3d 353, 356-57 (Pa. Cmwlth. 2013). Rule 1513(e)(4) of the Pennsylvania Rules of Appellate Procedure, which governs the contents of a petition for review filed in the Court's original jurisdiction, requires a petitioner to plead "a general statement of the material facts upon which the cause of action is based[.]" Pa.R.A.P. 1513(e)(4). See also Rule 1019(a) of the Pennsylvania Rules of Civil Procedure, Pa.R.C.P. No. 1019(a) (stating that "[t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form"). Our pleading rules operate "to require the [petitioner] to disclose the material facts sufficient to enable the adverse party to prepare the case." Bennett v. Beard , 919 A.2d 365, 367 (Pa. Cmwlth. 2007). Thus, "a pleading must not only apprise the opposing party of the asserted claim, ‘it must also formulate the issues by summarizing those facts essential to support the claim.’ " Richardson , 74 A.3d at 356-57 (quoting Sevin v. Kelshaw , 417 Pa.Super. 1, 611 A.2d 1232, 1235 (1992) ).
Pennsylvania Rule of Appellate Procedure 1517 provides: "Unless otherwise prescribed by these rules, the practice and procedure under this chapter relating to pleadings in original jurisdiction petition for review practice shall be in accordance with the appropriate Pennsylvania Rules of Civil Procedure, so far as they may be applied." Pa.R.A.P. 1517.
In the Amended Petition, Petitioner apprised the Board of three specific claims. These three claims are summarized in organized sections, set off by headings, that identify the claim being asserted and the factual allegations specific to each claim. As to Petitioner's first due process claim, the Amended Petition explains that this claim is based on the allegations that the Board is relying on incorrect information in Petitioner's file, as reflected in incorrect statements made during Petitioner's parole interviews and in the Board's decision, and provides legal support that Petitioner maintains shows how such allegations give rise to a due process violation. The Amended Petition also sets forth Petitioner's second claim, that the application of the current Parole Code standards for parole violates the prohibition against ex post facto laws. As to this claim, the Amended Petition specifically alleges: the legal bases for stating an ex post facto claim and using mandamus to assert such claims; statistics showing that prisoners similarly situated to Petitioner were paroled earlier prior to 1996; Petitioner's Guidelines scores before and after 1996; and Petitioner's inferences with respect to the stated reasons for the Board's previous parole denials in relation to the public safety policy of the 1996 Amendment. Finally, with regard to Petitioner's remaining due process claim, the Amended Petition cites the legal requirements for mandamus and for challenging the Board's parole decisions on the basis of substantive due process, and alleges that the Board is acting arbitrarily and capriciously by not exercising its discretion because it is denying parole solely based on Petitioner's criminal offenses and not upon Petitioner's positive conduct and other statutory factors that would support parole. Given the specific claims asserted and the averment of specific facts to support those claims, it cannot be said that the Amended Petition fails to "formulate the issues," Richardson , 74 A.3d at 356-57, or "to disclose the material facts sufficient to enable the [Board] to prepare the case," Bennett , 919 A.2d at 367. Accordingly, we overrule the Board's Preliminary Objection on the basis of insufficient specificity.
C. Demurrers
We turn now to the Board's demurrers. In ruling on preliminary objections in the nature of demurrers, this Court accepts as true all well-pleaded facts in the petition for review and draws all inferences reasonably deducible therefrom in favor of the petitioner. Stone & Edwards Ins. Agency, Inc. v. Dep't of Ins. , 151 Pa.Cmwlth. 266, 616 A.2d 1060, 1063 (1992). However, we "need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion." Id. (citing Dep't of Pub. Welfare v. Portnoy , 129 Pa.Cmwlth. 469, 566 A.2d 336 (1992) ). We will grant such objections and dismiss a petition for review "only in cases that are clear and free from doubt that the law will not permit recovery" by the petitioner. Capital City Lodge No. 12, Fraternal Ord. of Police v. City of Harrisburg (FOP ), 138 Pa.Cmwlth. 475, 588 A.2d 584, 586-87 (1991). And, in the face of doubt, our resolution should be in favor of denying the demurrer. City of Philadelphia v. Rendell , 888 A.2d 922, 928 n.17 (Pa. Cmwlth. 2005).
1. Mandamus
We first address the Board's demurrer to Petitioner's use of mandamus to challenge its parole decisions. The Board argues that Pennsylvania courts have repeatedly held that mandamus is an improper mechanism to challenge its discretionary decision to refuse parole. (Preliminary Objections ¶ 28; Board's Brief (Br.) at 3 (citing Coady v. Vaughn , 564 Pa. 604, 770 A.2d 287 (2001) ; Rogers , 724 A.2d at 319 ; Reider , 514 A.2d at 967 ).) The Board posits that its October 22, 2019 decision denying Petitioner parole is the most recent and, thus, controlling decision, and, therefore, Petitioner's arguments based on the reasons for denying parole in prior decisions are no longer relevant. (Board's Br. at 3-4.) Moreover, the Board argues that, pursuant to Weaver v. Pennsylvania Board of Probation and Parole , 688 A.2d 766 (Pa. Cmwlth. 1997), mandamus may only be used in the context of a parole refusal "to require the Board to follow appropriate procedures and apply the law properly in deciding whether to grant or refuse parole." (Id. at 4.) The Board maintains that "[m]andamus cannot be used to say that [the Board] considered improper factors, that its findings of fact were wrong, or that the reasons set forth in its decision are a pretense." (Id. (quoting Weaver , 688 A.2d at 766 ).) Accordingly, the Board asserts that mandamus will not lie because Petitioner has failed to establish that the Board lacked discretion to deny Petitioner parole based on reasons stated in the October 22, 2019 decision, the substance of which cannot be challenged. (Id. at 4-5 (citing Coady , 770 A.2d at 290 ).)
Petitioner argues that, under Rogers , 724 A.2d at 319, and Reider , 514 A.2d at 967, Pennsylvania courts have stated that "a prisoner may be entitled to pursue allegations of constitutional violations against the [Board] through a writ of mandamus" and that "mandamus is available to compel the [Board] to correct a mistake in applying the law." (Petitioner's Br. at 4.) Petitioner asserts that mandamus is the proper mechanism to challenge the Board's denial of parole because the denial "was arbitrary and based upon the Board's mistaken view of the law governing the due process and ex post facto clauses." (Id. ) Petitioner maintains that all of the Board's prior parole decisions remain "relevant [as] they show the pattern the Board has continuously followed in denying [Petitioner] parole." (Id. at 5.) Petitioner makes clear that this is not a challenge to the Board's exercise of discretion but that the Board is not exercising its discretion as required by the law.
Mandamus is an extraordinary remedy, "designed to compel performance of a ministerial act or mandatory duty where there exists a clear legal right in the [petitioner], a corresponding duty in the [respondent], and want of any other adequate and appropriate remedy." Coady , 770 A.2d at 289 (citing Bronson v. Pa. Bd. of Prob. & Parole , 491 Pa. 549, 421 A.2d 1021, 1023 (1980) ). However, mandamus may not be used "to compel a purely discretionary act." Id. at 290 (citing County of Allegheny , 490 A.2d at 402 ). In Coady , our Supreme Court explained:
[This standard] has usually been interpreted to mean that while a court may direct that discretion be exercised, it may not specify how that discretion is to be exercised nor require the performance of a particular discretionary act .... In short, mandamus is chiefly employed
to compel the performance (when refused) of a ministerial duty, or to compel action (when refused) in matters involving judgment or discretion. It is not used to direct the exercise of judgment or discretion in a particular way, nor to direct the retraction or reversal of an action already taken.
Id. (alteration in original).
In addition to setting forth the general standards for mandamus relief, the Supreme Court in Coady explained that a mandamus action may lie for the purpose of raising an ex post facto violation where there is a significant risk of prolonged incarceration due to the application of retrospective law. Id. at 290. Further, our Supreme Court and this Court have indicated that mandamus may be used to raise due process violations. Rogers , 724 A.2d at 319 ; Reider , 514 A.2d at 967. In Rogers , several petitioners who had been denied parole petitioned for review of those denials claiming a violation of due process, which this Court denied. Upon its review, the Supreme Court held that there is no right to directly appeal a "Board decision denying parole under either the Administrative Agency Law[ ] or the [United States] Constitution." 724 A.2d at 323. However, the Court recognized that, while the petitioners were "not entitled to appellate review of a [ ] Board decision, they may be entitled to pursue allegations of constitutional violations against the [ ] Board through a writ of mandamus[.]" Id. at 323 n.5. Similarly, this Court in Reider addressed whether the petitioner's constitutional claims, which included a due process claim, challenging the Board's decision to deny parole were subject to judicial review. This Court found that such decisions were "uniquely one[s] of administrative discretion" and, therefore, "not subject to our review," but also acknowledged that a petitioner "could bring an action in the nature of mandamus" alleging that the Board failed to act or seeking to have the Board "correct a mistake in applying the law." Reider , 514 A.2d at 971, 972 n.4. Thus, under our precedent, both ex post facto claims and due process challenges may be raised in a mandamus action. See also Boyd v. Ward , 802 A.2d 705, 708 (Pa. Cmwlth. 2002) (denying the Board's preliminary objections to a due process claim brought in mandamus); Voss v. Pa. Bd. of Prob. & Parole , 788 A.2d 1107, 1111 (Pa. Cmwlth. 2001) (same).
2 Pa.C.S. §§ 101 -754.
Here, Petitioner has brought a mandamus action alleging due process and ex post facto violations. Petitioner has alleged that the application of the 1996 Amendment to Petitioner's parole decisions violates the prohibition against ex post facto laws by significantly prolonging Petitioner's incarceration. Coady , 770 A.2d at 290. Petitioner's due process claims make clear that Petitioner is not challenging the Board's exercise of discretion in denying parole, but the Board's failure to follow the law in denying Petitioner's parole by relying on incorrect or false information and making its decision solely based on the fact that Petitioner is a sex offender while ignoring other factors relevant to that decision. Accordingly, because our precedent indicates that ex post facto and due process claims against the Board, like those Petitioner has raised, may be asserted through mandamus, we cannot say that it is clear and without doubt that the law will not permit Petitioner's claims in mandamus at this time, FOP , 588 A.2d at 586-87, and overrule this demurrer.
2. Ex Post Facto Claim
We next turn to the Board's demurrer to Petitioner's ex post facto claim. The Board argues that Petitioner has failed to allege sufficient facts to demonstrate a claim for an ex post facto violation. Recognizing that a petitioner may be able to allege an actionable claim based on the 1996 Amendment by alleging sufficient facts demonstrating that the Board likely would have paroled Petitioner under the pre-1996 Parole Law, the Board maintains that Petitioner has not pleaded enough facts to show that a petitioner who is denied parole for the reasons stated in the October 22, 2019 decision would likely have been paroled prior to 1996. (Board's Br. at 10-12 (citing Cimaszewski , 868 A.2d at 416 ; Loomis v. Pa. Bd. of Prob. & Parole , 878 A.2d 963 (Pa. Cmwlth. 2005) ).) And, given that Petitioner has an alternate remedy at law through a 42 U.S.C. § 1983 claim (relating to civil rights violations), the Board argues that Petitioner cannot show a clear right to relief, a corresponding duty in the Board, and the absence of any other adequate or appropriate remedy, as required for mandamus relief. (Id. at 14 (citing Finnegan v. Pa. Bd. of Prob. & Parole , 576 Pa. 59, 838 A.2d 684 (2003) ).) Accordingly, the Board requests that this Court sustain its demurrer and dismiss Petitioner's ex post facto claim.
The Board asks this Court to take judicial notice of Petitioner's previous attempt to bring a similar claim in 2006, which this Court dismissed with prejudice, and find Petitioner's claims barred. However, we note that Petitioner's present ex post facto claim challenges the most recent decisions from the Board in which the Board provided reasons for denying parole that were not given in the Board's May 5, 2006 decision. In the Board's May 5, 2006 decision, the reasons were: (1) lack of remorse for the offenses committed; (2) need to participate in additional institutional programs; and (3) Petitioner's interview with the Board Member/Hearing Examiner. Toland v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 353 C.D. 2006, filed Feb. 28, 2007), slip op. at 3. Moreover, while the brevity of time between the decision and the 1996 Amendment weighed against granting relief in the prior matter, Petitioner argues more time has now passed to show that Petitioner's eligibility for parole is being negatively affected. Therefore, we will not hold that Petitioner's present claim is barred by our previous decision.
Petitioner argues that the Amended Petition alleged sufficient evidence to state an ex post facto claim. Petitioner asserts that, in order to state a claim, a petitioner must demonstrate that the 1996 Amendment, as applied to that petitioner, creates a significant risk of prolonging incarceration. (Petitioner's Br. at 9 (citing Cimaszewski , 868 A.2d at 416 ).) In order to do so, Petitioner asserts that a petitioner may: (1) "compare the parole rates for prisoners with similar convictions before and after the 1996 [A]mendment[,]" (2) "state whether the Pennsylvania Parole Guidelines would indicate that the petitioner was a good parole candidate," or (3) "draw inferences from the statement of reasons provided by the Board regarding the criteria used for parole determination in that individual's case." (Id. at 9-10 (citing Richardson , 423 F.3d at 282 ).) Petitioner contends to have alleged "DOC statistical reports from the years 1993 (Petitioner's year of sentencing), 2004 (Petitioner's minimum date), 2010, and 2016 show[ing that] the average time served prior to parole has more than doubled for prisoners with similar convictions to him from 1993 to 2016." (Id. at 10 (citing Am. Pet. ¶¶ 91-98).) Petitioner next points to the Board's Guidelines scoresheets from prior to 1996, which Petitioner argues show that the Board would have granted parole "based on [ ] program participation, clear conduct record, DOC parole support, age, risk assessment, strength of parole plan, etc." (Id. ) Additionally, Petitioner argues that he has "dr[awn] inferences from the statement of reasons provided by the Board regarding the criteria used for [the] parole determination in his case[,]" claiming that the denial reasons given were "based on his behavior and the criminal offenses committed in 1993[,]" which "would never [have] been used under the pre-1996 parole decision[-]making [Guidelines]." (Id. ) Given the focus on public safety in the 1996 Amendment, Petitioner asserts that the Board would not have given these reasons before the amendment because the pre-1996 Parole Law emphasized "an offender's instructional record and their success in addressing anti-social behavior[.]" (Id. ) Petitioner argues that because the Board's specific directives were satisfied by Petitioner maintaining DOC parole support and misconduct-free behavior during all 10 of the parole reviews since 2009, Petitioner would have been paroled under the pre-1996 Parole Law. Accordingly, Petitioner requests we overrule the Board's demurrer to the ex post facto claim.
Where a challenge to the denial of parole is not based on the exercise of the Board's discretion but rather on "the actions of the [B]oard pursuant to changed statutory requirements[,] an action for mandamus [is] viable as a means for examining whether statutory requirements have been altered in a manner that violates the ex post facto clause." Coady , 770 A.2d at 290. The ex post facto prohibition bars enactments by the States "which, by retroactive operation, increase the punishment for a crime after its commission." Garner , 529 U.S. at 249, 120 S.Ct. 1362 (citing Collins v. Youngblood , 497 U.S. 37, 42, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) ). "Retroactive changes in laws governing parole of prisoners, in some instances may be violative of this precept." Id. (citing Weaver v. Graham , 450 U.S. 24, 32, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) ; Morales , 514 U.S. at 508-09, 115 S.Ct. 1597 ). Our Supreme Court has recognized the potential of an ex post facto violation by a change in a parole law under the Pennsylvania and United States Constitutions. Coady , 770 A.2d at 290. "Two critical elements must be present for a criminal or penal law to be violative of the ex post facto clause: ‘It must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.’ " Cimaszewski , 868 A.2d at 423 (quoting Weaver , 450 U.S. at 29, 101 S.Ct. 960 ). Petitioner was convicted of the relevant crimes in 1993; as such, the application of the 1996 Amendment to Petitioner's parole decisions would constitute a retrospective application of law. We must, therefore, examine whether Petitioner has sufficiently pled that the application of the 1996 Amendment has disadvantaged Petitioner such that it violates the ex post facto prohibition.
In Cimaszewski , our Supreme Court analyzed whether the Board's application of the 1996 Amendment violated the ex post facto prohibition as it applied to the petitioner-offender, holding that "the 1996 [A]mendment may be shown to violate the ex post facto clause if an inmate is able to demonstrate that the 1996 [A]mendment, as applied to [the inmate], creates a significant risk of prolonging [the inmate's] incarceration." 868 A.2d at 427. Our Supreme Court further explained what a petitioner must allege in order to state an actionable claim in "our fact-pleading system of jurisprudence":
Speculative and attenuated possibilities of increasing punishment ... do not suffice. Instead, this fact-intensive inquiry must be conducted on an individual basis. As the Supreme Court has indicated, when the rule does not by its own terms show a significant risk, the challenger must demonstrate, by evidence drawn from the rule's practical implementation that its retroactive application will result in a longer period of incarceration than under the earlier rule. Thus, to state an actionable claim, an inmate must present some facts showing that the result of this change in policy, by its own terms, demonstrates a significant risk of prolonging the inmate's term
of incarceration, or that it negatively impacts the chance the inmate has to be released on parole. Preliminarily, the prisoner must first plead that he can provide the requisite evidence that he faces a significant risk of an increase in punishment by application of the 1996 [A]mendment, specifically, that under the pre-1996 Parole [Law], the Board would likely have paroled the inmate. Without first pleading that such evidence exists, there is no basis for providing a prisoner with the opportunity for an evidentiary proceeding, and, without such a hearing, no basis for affording relief.
Id. at 427 (quotations and citations omitted) (emphasis added). Despite recognizing the availability of such a claim, however, the Supreme Court determined that the petitioner there failed to demonstrate an increased risk of incarceration based on the 1996 Amendment. The petitioner "cite[d] to no information specific to his situation which could demonstrate that he [wa]s at risk of prolonged incarceration" but "merely cite[d] to the same statistical evidence" rejected in Mickens-Thomas v. Vaughn , 321 F.3d 374 (3d Cir. 2003), which the Supreme Court held to be insufficient. Cimaszewski , 868 A.2d at 427-28. Further, the petitioner "offer[ed] no correlation which connects his parole denials to the changes in the law." Id. at 428. Accordingly, under this standard, we must determine whether Petitioner has alleged sufficient facts to show that, under the pre-1996 Parole Law, the Board would have likely granted parole.
Since Cimaszewski , however, this Court has considered many of these challenges and consistently found that the allegations raised therein failed to satisfy the Cimaszewski standard. See, e.g. , Garcia v. Pa. Bd. of Prob. & Parole , 2013 WL 4858943 (Pa. Cmwlth., No. 1631 C.D. 2012, filed Sept. 11, 2013) ; Broaddus v. Pa. Bd. of Prob. & Parole , 2010 WL 9519012 (Pa. Cmwlth., No. 416 M.D. 2009, filed Apr. 30, 2010) ; Prince v. Pa. Bd. of Prob. & Parole , 2009 WL 9102328 (Pa. Cmwlth., No. 425 M.D. 2008, filed June 16, 2009) ; Evans v. Pa. Bd. of Prob. & Parole , 905 A.2d 595 (Pa. Cmwlth. 2006) ; Sheffield v. Pa. Dep't of Corr. , 894 A.2d 836 (Pa. Cmwlth. 2006) ; Loomis , 878 A.2d at 963. In most of these cases, we denied the petitioners’ claims because they failed to plead any facts that could support or establish a connection between their parole denial and the 1996 Amendment. Nonetheless, some of our analysis in those cases provides insight as to what sort of evidence, even if pleaded, is insufficient to state an actionable claim. In Sheffield , the petitioner argued that, generally, more inmates were paroled under the pre-1996 Parole Law than under the 1996 Amendment and, as such, the petitioner's period of incarceration was increased. The petitioner there provided data regarding parole rates before and after the 1996 Amendment to support this argument. We rejected these allegations as being insufficient to state a claim because such data was not specific to the petitioner's situation and, therefore, could not be used to show that the petitioner would have had a better chance of parole under the pre-1996 Parole Law. Sheffield , 894 A.2d at 842-43. Based on our holding in Sheffield , we also rejected similar allegations in Evans , where the petitioner likewise cited to statistical data regarding general parole rates before and after the 1996 Amendment. Evans , 905 A.2d at 600. Thus, it appears that a petitioner needs to aver more than bare statistical data that shows a decrease in the general parole rate following the 1996 Amendment.
While our precedent has not yet developed what kind of factual allegations would be sufficient to state an ex post facto claim under Cimaszewski , the United States Court of Appeals for the Third Circuit (Third Circuit) has addressed the issue. In Richardson , 423 F.3d at 282, the Third Circuit discussed the sort of facts and evidence which a petitioner might allege to satisfy Cimaszewski ’s standard. The Third Circuit stated:
[I]t is not sufficient for a prisoner to show that the Board relied on a new law or policy. Rather, he must also adduce some evidence that this new law or policy disadvantaged him by creating a significant risk of increasing his punishment. We acknowledge the intuitive force of the argument that adjudication under stricter standards is more likely to lead to an adverse result. And we recognize that it may be difficult for a prisoner to adduce evidence of disadvantage, particularly since, prior to 2001, the [ ] Board did not need to give a detailed statement of reasons for denial of parole.[ ] But the evidentiary requirement of the jurisprudence must be honored. For example, a petitioner might compare the parole rates for prisoners with similar convictions before and after the 1996 Amendment[ ], state whether the [ ] Guidelines would indicate that the petitioner was a good parole candidate, or draw inferences from the statement of reasons provided by the [ ] Board regarding the criteria used for the parole determination in that individual's case.
Id. at 292-93 (quotations, citations, and footnote omitted) (emphasis added). The Third Circuit then compared the allegations made in Richardson to those in Mickens-Thomas , 321 F.3d at 381-83, using this approach. In Mickens-Thomas , the petitioner received a commutation of a life sentence, rendering the petitioner eligible for parole; however, of the 266 prisoners whose life sentences had been commuted at the time in Pennsylvania, the petitioner was the only one not granted parole. In the petitioner's parole denial decisions, the Board explicitly relied on the public safety policy of the 1996 Amendment. The petitioner brought an ex post facto challenge, and, in addition to showing that all of the similarly situated prisoners above had been paroled, the petitioner also produced evidence showing that the petitioner had a significant likelihood of parole under the pre-1996 Parole Law because the Guidelines would have recommended parole but that the Board denied parole as a result of the public policy change by the 1996 Amendment. The Board's reliance on public safety in Mickens-Thomas was reflected in the reasons provided in his parole decisions, which clearly indicated that the denials were based on public safety. In contrast, the petitioner in Richardson did not allege evidence of the rate of parole for similarly situated petitioners before and after the 1996 Amendment, did not show that the Guidelines would have recommended parole, and failed to show inferences as to how the reasons provided in the Board's parole denial exhibited that the 1996 Amendment impacted the parole determination.
Turning to the allegations in the present case, contrary to the Board's arguments, Petitioner has submitted more than just the conclusory allegations this Court has previously rejected. In fact, Petitioner has modeled the Amended Petition after the Third Circuit's recommendations in Richardson. In the Amended Petition, Petitioner alleged that the contention that the application of the 1996 Amendment to Petitioner disadvantaged Petitioner's chances of parole is supported by DOC statistical reports from the years 1993 (Petitioner's year of sentencing), 2004 (Petitioner's minimum date), 2010, and 2016, which Petitioner avers to show that the average time served prior to parole has more than doubled for prisoners with convictions similar to Petitioner from 1993 to 2016. (Am. Pet. ¶¶ 91-98.) This type of data is distinguishable from the generalized statistics rejected in Sheffield and Evans , as the pleaded data shows that Petitioner's parole decisions differ from those for similarly situated individuals prior to the 1996 Amendment. Indeed, this allegation is more akin to the allegations found sufficient to state an actionable claim in Mickens-Thomas . Petitioner also cites to the Board's Guidelines scoresheets from prior to 1996, which Petitioner argues demonstrate that Petitioner would have been likely to have been paroled based on Petitioner's program participation, clear conduct record, DOC parole support, age, risk assessment, and the strength of Petitioner's parole plan. Once more, this allegation is more comparable to those found to be sufficient in Mickens-Thomas than those determined to be insufficient in Sheffield and Evans .
Looking to the reasons provided to Petitioner in the most recent parole decisions, the Board stated in its December 18, 2018 decision that it denied Petitioner parole due to: (1) Petitioner's failure to demonstrate a motivation for success; (2) the nature of the offense; and (3) Petitioner's past criminal history with domestic violence. In its October 22, 2019 decision, the Board stated the reasons for the denial as: (1) Petitioner's risk and needs assessment indicating a level of risk to the community ; (2) reports, evaluations, and assessments indicating a risk to the community ; (3) the nature of the case; (4) the nature of risk posed ; and (5) the need to have significant stability time and increased age as a protective factor . (Am. Pet., Ex. A.) Prior to each of these decisions, the only directives from the Board to Petitioner were to maintain DOC parole support and misconduct-free behavior, which Petitioner alleges to have maintained. Petitioner argues that these reasons, which in the recent October 22, 2019 decision pertain to the nature of the crimes committed and the risk posed to the community as a result, in addition to the continued denials despite meeting the Board's specific directives, support the inference that the public safety policy in the 1996 Amendment was the material reason for the Board denying parole. While these reasons are not so obviously based on the 1996 Amendment as those given in Mickens-Thomas , in which the Board explicitly relied on public safety in denying the petitioner parole, the totality of Petitioner's allegations and the reasonable inferences derived therefrom, which this Court must accept as true and draw in favor of Petitioner, Stone and Edwards Insurance Agency, Inc. , 616 A.2d at 1063, raise a sufficient claim that the Board relied on the 1996 Amendment to deny Petitioner parole. As such, it cannot be said that it is free and clear from doubt that Petitioner has failed to state an ex post facto claim under Cimaszewski . FOP , 588 A.2d at 586-87. Therefore, because this Court resolves any doubt in favor of overruling preliminary objections in the nature of a demurrer, Rendell , 888 A.2d at 928 n.17, we hold that Petitioner has alleged sufficient facts to state an actionable ex post facto claim. Accordingly, we overrule the demurrer.
3. Due Process Challenge to the Board's Parole Decisions for Failure to Follow Statutory Standards
Finally, we address the Board's demurrer to Petitioner's due process claim alleging that the Board did not exercise its discretion in denying Petitioner's parole in accordance with the statutory standards. As to Petitioner's argument that the Board exercised its discretion in an arbitrary and capricious manner, the Board argues that Petitioner cannot meet the high standard needed to state such a claim, which is based on substantive due process, that requires that the Board's action be more than egregious but "conscience shocking." (Board's Br. at 5-6 (quoting Hunterson v. DiSabato , 308 F.3d 236, 246-47 (3d Cir. 2002) ).) Because the reasons stated in the October 22, 2019 decision satisfy the Board's minimal standards under the Parole Code necessary for the Board to consider in denying parole, the Board asserts, the Board's actions were not "conscience shocking[,]" and Petitioner's due process claim must fail. (Id. at 7-8 (citing 61 Pa.C.S. § 6135 (delineating the factors the Board must consider); Boyd , 802 A.2d at 707 ; Voss , 788 A.2d at 1108 ; and Hollawell v. Pa. Bd. of Prob. & Parole , 701 A.2d 290 (Pa. Cmwlth. 1997) ).)
Petitioner argues that, under Boyd , 802 A.2d 705, and Voss , 788 A.2d 1107, "the Board's decision denying parole must meet the requirements of due process." (Petitioner's Br. at 6.) Petitioner maintains that the Board exercised its discretion in an arbitrary and capricious manner by relying on the nature of Petitioner's criminal conduct in denying parole and ignoring the remaining factors it is required to consider, such as Petitioner's rehabilitative accomplishments and Petitioner's satisfaction of the Board's directives to Petitioner after previously denying parole. (Id. at 7-8.) Because the "Pennsylvania statutory scheme d[oes] not permit the denial of parole based solely on the nature of the crime or the [petitioner's] pre-offense behavior[,]" Petitioner asserts that the Board has ignored its statutorily mandated duty to review all of the conditions for parole in Petitioner's decisions and, therefore, Petitioner has stated a substantive due process violation. (Id. at 8-9.)
In addition to "first and foremost seek[ing] to protect the safety of the public[,]" 61 Pa.C.S. § 6102(2), the Parole Code also sets forth certain standards for the Board to consider in making parole decisions, Section 6135(a) of the Parole Code, 61 Pa.C.S. § 6135(a). The Board must consider:
(1) The nature and circumstances of the offense committed.
(2) Any recommendations made by the trial judge and prosecuting attorney.
(3) The general character and background of the inmate.
(4) Participation by an inmate sentenced after February 19, 1999, and who is serving a sentence for a crime of violence as defined in 42 Pa.C.S. § 9714(g) (relating to sentences for second and subsequent offenses) in a victim impact education program offered by [DOC].
(5) The written or personal statement of the testimony of the victim or the victim's family submitted under [S]ection 6140 [of the Parole Code, 61 Pa.C.S. § 6140,] (relating to victim statements, testimony and participation in hearing).
(6) The notes of testimony of the sentencing hearing, if any, together with such additional information regarding the nature and circumstances of the offense committed for which sentence was imposed as may be available.
(7) The conduct of the person while in prison and his physical, mental and behavioral condition and history, his history of family violence[,] and his complete criminal record.
Id.
In Voss , this Court considered a similar due process challenge to the Board's discretionary denial of parole. 788 A.2d 1107. There, the petitioner argued that the Board violated due process by applying the wrong standard in denying parole. We explained that "the law is well settled that the Board has broad discretion in making parole decisions. However, it does not follow that the Board has no corresponding duty to consider and to act upon parole applications according to specifically articulated statutory standards." Id. at 1111. Because the petitioner alleged that the Board's justification for denying parole included a factor not included in the Parole Code, this Court held that the petitioner stated a claim because "the record demonstrate[d] that he assert[ed] that he met all previous requirements for parole previously imposed upon him by the Board" yet did not receive a statement of the reasons for the parole denial that were based on the Parole Code's mandates. Id. We further reviewed a similar due process claim in Boyd , 802 A.2d 705, again holding that the Board's reliance on a factor not included in the Parole Code's mandates in denying the petitioner's parole did not meet the minimal statutory requirements. Accordingly, we overruled the preliminary objections.
In the present case, after reviewing the Petition, we discern that Petitioner has alleged that the Board has ignored the Parole Code's minimal statutory requirements by only considering the nature of Petitioner's crimes in denying parole while disregarding the other factors that weighed in favor of granting parole. Moreover, Petitioner is also presently challenging which statutory standards should apply through the ex post facto claim. In this respect, if Petitioner is able to show that the pre-1996 standards should apply, then this Court's analysis as to whether the Board is ignoring its statutory mandates such that it is denying Petitioner due process of law is necessarily affected. Given the connection between the analysis for Petitioner's substantive due process claim and the proper statutory standards to be applied to Petitioner's parole decisions, as raised in Petitioner's ex post facto claim, sustaining the Board's demurrer to the due process claim is not proper at this time. We conclude that it does not appear with certainty that the Board has complied with its statutory mandates and that the law will permit no relief to Petitioner. FOP , 588 A.2d at 586-87. Accordingly, we overrule the Board's demurrer to Petitioner's substantive due process claim.
III. CONCLUSION
We accept the Board's Preliminary Objections notwithstanding their untimeliness because Petitioner has not alleged any prejudice by allowing the Preliminary Objections to proceed. Because we determine that Petitioner has pleaded with sufficient specificity, and, at this preliminary stage, stated viable claims in mandamus, for a violation of the ex post facto prohibitions, and for a violation of substantive due process based on the Board's alleged failure to consider the statutory standards for denying parole, we overrule the Preliminary Objections.
ORDER
NOW , September 29, 2021, Petitioner's Application for Summary Relief is DISMISSED as moot. The Pennsylvania Board of Probation and Parole's (Board) Preliminary Objections are OVERRULED , and the Board is directed to file an Answer to Christopher Toland's Amended Petition for Review/Mandamus within 30 days of the filing of this Order.