E. Davenport v. PA General Assembly & PBPP ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Elmer Davenport, :
Petitioner :
:
v. : No. 244 M.D. 2019
: SUBMITTED: June 25, 2021
Pennsylvania General Assembly and :
PA. Board of Probation and Parole, :
Respondents :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: September 22, 2021
Elmer Davenport (Petitioner), an inmate at the State Correctional Institution
at Mahanoy, petitions this Court pro se for a declaratory judgment that Section
6137(a) of the Prisons and Parole Code (Parole Code), 61 Pa. C.S. § 6137(a)
(excepting from parole “an offender condemned to death or serving life
imprisonment”), is unconstitutional as applied to him, and he is thus seeking parole
eligibility.1 The Pennsylvania General Assembly2 (General Assembly) and the
Pennsylvania Board of Probation and Parole (Board)3 (collectively, Respondents)
filed preliminary objections, raising a number of defenses.4 For the reasons that
follow, we sustain Respondents’ preliminary objections regarding this Court’s
jurisdiction and dismiss this matter.
I. Background
On March 1, 1994, Petitioner was sentenced to life imprisonment for second-
degree murder pursuant to Section 1102(b) of the Crimes Code, 18 Pa. C.S. §
1102(b) (“[A] person who has been convicted of murder of the second degree . . .
shall be sentenced to a term of life imprisonment.”). Pet. ¶ 8. Petitioner asserts that
“[a]t no time was [he] sentence[d] to life imprisonment ‘without parole.’” Id. ¶ 12.
On September 14, 2014, Petitioner applied for parole with the Board pursuant to
1
Petitioner asserts that his Amended Petition for Review (Petition) is “in the nature of
Mandamus / Prohibition;” however, we read his claims and relief sought as requesting a
declaratory judgment. Pet. ¶¶ 2-3; see also Commonwealth Court, Memorandum and Order, at 1
n.2, November 13, 2020 (granting Petitioner’s Motion to Amend his original Petition for Review).
2
The Petition named Senator Joe Scarnati, the former President Pro Tempore of the Senate,
and Representative Mike Turzai, the former Speaker of the House of Representatives, as official
representatives of the General Assembly. Pet. ¶ 6.
3
Subsequent to the filing of the Petition for Review, the Pennsylvania Board of Probation
and Parole was renamed the Pennsylvania Parole Board. See Sections 6101 and 6111(a) of the
Prisons and Parole Code, 61 Pa. C.S. §§ 6101, 6111(a).
4
When ruling on preliminary objections, we accept as true all well-pleaded material
allegations in the petition for review and any reasonable inferences that we may draw from the
averments. Meier v. Maleski, 648 A.2d 595, 600 (Pa. Cmwlth. 1994). However, this Court is not
bound by legal conclusions, unwarranted inferences from facts, argumentative allegations, or
expressions of opinion encompassed in the Petition. Id. We may sustain preliminary objections
only when the law makes clear that the petitioner cannot succeed on the claim, and we must resolve
any doubt in favor of the petitioner. Id. “We review preliminary objections in the nature of a
demurrer under the above guidelines and may sustain a demurrer only when a petitioner has failed
to state a claim for which relief may be granted.” Armstrong Cnty. Mem’l Hosp. v. Dep’t of Pub.
Welfare, 67 A.3d 160, 170 (Pa. Cmwlth. 2013).
2
Section 6139 of the Parole Code, 61 Pa. C.S. § 6139 (relating to procedures for
considering parole). Id. ¶ 15. The Board denied Petitioner’s application for parole
on December 4, 2014, noting that Petitioner was serving a life sentence, and
therefore, was not eligible for parole pursuant to Section 6137(a)(1) of the Parole
Code.5 Id. ¶ 16, Ex. B. Petitioner applied for parole again on March 4, 2019. Id. ¶
17. However, Petitioner never received a response from the Board to his second
application. Id. Petitioner then filed a Petition for Review with this Court in our
original jurisdiction.
II. Issues
In his Petition, Petitioner challenges Section 6137(a) of the Parole Code as an
ex post facto law,6 a bill of attainder,7 and its application as a violation of double
5
“The [B]oard may parole . . . and may release on parole any offender to whom the power
to parole is granted to the [B]oard by this chapter, except an offender condemned to death or
serving life imprisonment.” 61 Pa. C.S. § 6137(a)(1) (emphasis added).
6
The ex post facto clause prohibits the General Assembly from enacting a law with the
retroactive effect of criminalizing a formerly noncriminal act or heightening the punishment of a
prior criminal act. Com. v. Rose, 127 A.3d 794, 798 (Pa. 2015). The analysis is the same under
both the United States and the Pennsylvania ex post facto clauses. Id. at 798 n.11; compare U.S.
Const. art. I, § 10, cl. 1 (“No State shall . . . pass any . . . ex post facto Law.”) with Pa. Const. art.
I, § 17 (“No ex post facto law . . . shall be passed.”). “In order for a criminal or penal law to be
deemed an ex post facto law, ‘two critical elements’ must be met: ‘it must be retrospective, that is,
it must apply to events occurring before its enactment, and it must disadvantage the offender
affected by it.’” Rose, 127 A.3d at 799 (quoting Weaver v. Graham, 450 U.S. 24, 29 (1981)).
7
“A bill of attainder is a legislative enactment which determines guilt and inflicts
punishment upon an identifiable person or group without a judicial trial.” Silo v. Ridge, 728 A.2d
394, 401 (Pa. Cmwlth. 1999). Both the United States and Pennsylvania Constitutions prohibit bills
of attainder. U.S. Const. art. I, § 10, cl. 1 (“No State shall . . . pass any Bill of Attainder.”); Pa.
Const. art. I, § 18 (“No person shall be attainted of treason or felony by the Legislature.”).
3
jeopardy.8 Pet. ¶¶ 32-34. Respondents filed Preliminary Objections asserting that
the allegations in the Petition failed to state any claim for which relief could be
granted. General Assembly’s Prelim. Objs. at 5, 8; Board’s Prelim. Objs. at 3-5.
The General Assembly specifically raised the defense of subject matter jurisdiction
through speech and debate immunity9 and asserted that Petitioner failed to exercise
the statutory remedy as prescribed by the Post Conviction Relief Act (PCRA), 42
Pa. C.S. §§ 9541-9546. General Assembly’s Prelim. Objs. at 4, 6.
III. Discussion
This Court’s subject matter jurisdiction over a petition for review is a
threshold matter, which must be addressed before any other issues asserted by the
parties. Funk v. Wolf, 144 A.3d 228, 241 (Pa. Cmwlth. 2016). For this reason, we
first address the General Assembly’s preliminary objections regarding this Court’s
subject matter jurisdiction, specifically, whether Petitioner must bring his claims
under the PCRA rather than as a petition for review in this Court’s original
jurisdiction.
8
The double jeopardy clause prevents a second prosecution for the same offense after
acquittal or conviction and protects against multiple punishments for the same offense. Com. v.
Bostic, 456 A.2d 1320, 1322 (Pa. 1983). With respect to the prohibition of multiple punishments,
the Fifth Amendment of the United States Constitution is coextensive with Article I, Section 10 of
the Pennsylvania Constitution. Id. at 1322 n.4; compare U.S. Const. amend. V (“No person shall
. . . be subject for the same offence to be twice put in jeopardy of life or limb.”), with Pa. Const.
art. I, § 10 (“No person shall, for the same offense, be twice put in jeopardy of life or limb.”).
9
The Pennsylvania Constitution provides speech and debate immunity to members of the
General Assembly for legitimate legislative activities. Pa. Const. art. II, § 15 (“The members of
the General Assembly . . . for any speech or debate in either House . . . shall not be questioned in
any other place.”); see also Consumers Educ. & Protective Ass’n v. Nolan, 368 A.2d 675, 680 (Pa.
1977) (holding Pennsylvania speech and debate immunity is “essentially identical” in language
and scope with its Federal counterpart (citing U.S. Const. art. I, § 6)). Legislators have immunity
from suit for any action made within the “legitimate legislative sphere.” League of Women Voters
of Pa. v. Com., 177 A.3d 1000, 1003 (Pa. Cmwlth. 2017).
4
Petitioner states that he is not seeking relief pursuant to the PCRA; rather, he
is challenging the constitutionality of the Parole Code as applied to him. Pet’r’s Br.
at 9. As such, Petitioner argues that this is a mandamus action seeking to compel
consideration for his parole, rather than a challenge to his criminal sentence. Id. at
8.
The General Assembly counters that Petitioner’s as-applied challenge to
Section 6137(a)(1) of the Parole Code is a challenge to his life sentence. General
Assembly’s Br. at 6. The General Assembly argues that Petitioner is seeking post-
conviction relief, because Petitioner’s eligibility for parole is determined by his life
sentence. Id. Accordingly, the General Assembly asserts that Petitioner must bring
his action pursuant to the PCRA. Id.
This Court has original jurisdiction over “all civil actions or proceedings
[a]gainst the Commonwealth government . . . except: []actions or proceedings in the
nature of applications for a writ of habeas corpus or post-conviction relief not
ancillary to proceedings within the appellate jurisdiction of the [C]ourt.” 42 Pa. C.S.
§ 761(a)(1)(i). Conversely, the court of common pleas has original jurisdiction over
PCRA proceedings. 42 Pa. C.S. § 9545. The PCRA “provides for an action by
which . . . persons serving illegal sentences may obtain collateral relief.” Id. § 9542.
Further, the PCRA is “the sole means of obtaining collateral relief and encompasses
all other common law and statutory remedies for the same purpose that exist[ed]
when [the PCRA took] effect, including habeas corpus and coram nobis.” Id.
We most recently examined whether the PCRA, or our original jurisdiction,
applied to a similar challenge to the constitutionality of life sentences without parole
in Scott v. Pennsylvania Board of Probation and Parole, ___ A.3d ___, (Pa.
Cmwlth., No. 397 M.D. 2020, filed May 28, 2021). In Scott, the petitioners, a group
5
of inmates who were serving life sentences for second degree murder, sought review
of the Board’s denial of their parole applications. They argued that Section
6137(a)(1) of the Parole Code, 61 Pa. C.S. § 6137(a)(1) (excepting from parole “an
offender condemned to death or serving life imprisonment”), was unconstitutional
as applied to their sentences under both the United States and Pennsylvania
Constitutions. However, we determined that the petitioners’ claims were, in
actuality, collateral attacks on their sentences and, by filing a petition for review in
this Court, the petitioners engaged in improper forum shopping. Scott, ___ A.3d at
___, slip op. at 14; see also Hill v. Com. (Pa. Cmwlth., No. 152 M.D. 2008, filed
Sept. 26, 2008) (unreported)10 (holding that the petitioner’s constitutional challenge
to the former Parole Code11 was a collateral attack on his sentence, which must be
brought under the PCRA).
The arguments asserted by the Scott petitioners went to the constitutionality
of their sentences. Their chief argument was that the Parole Code’s prohibition on
parole for life sentences was cruel and unusual punishment in violation of both the
United States and Pennsylvania Constitutions.12 Scott, ___ A.3d at ___, slip op. at
11-12. We held that the Scott petitioners’ claims regarding Section 6137 of the
Parole Code were a collateral attack on their sentences, because their ineligibility for
10
Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code
§ 69.414(a), an unreported panel decision of this Court issued after January 15, 2008, may be cited
for its persuasive value, but not as binding precedent.
11
Act of August 6, 1941, P.L. 861, as amended, formerly 61 P.S. §§ 331.1 to 331.8,
repealed by the Act of August 11, 2009, P.L. 147.
12
The petitioners argued the sentence of life without parole for felony murder violated the
Eighth Amendment to the United States Constitution and Article I, Section 13 of the Pennsylvania
Constitution. U.S. Const. amend. VIII (“Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.”); Pa. Const. art. I, § 13 (“Excessive bail
shall not be required, nor excessive fines imposed, nor cruel punishments inflicted.”).
6
parole stemmed from their life sentences. Id. at ___, slip op. at 15. Accordingly,
the Scott petitioners were required to seek post-conviction relief via the PCRA from
the courts of common pleas that had sentenced them and could not pursue
declaratory relief from this Court. Id.
As in Scott, Petitioner in this matter mounts an impermissible collateral attack
upon his criminal sentence. Repeated throughout his Petition for Review is the
argument that Section 6137(a)(1) of the Parole Code’s prohibition against parole for
life sentences constitutes a separate and more severe punishment than his life
sentence. Pet. ¶¶ 19, 26, 30, 36-37, 56-57, 60, 63-66. Petitioner’s constitutional
challenges to Section 6137(a)(1) of the Parole Code essentially raise illegal sentence
claims under the PCRA. See generally Com. v. Moore, 247 A.3d 990, 995-97 (Pa.
2021) (discussing illegal sentence claims under the PCRA, which include “claims
that the sentence fell ‘outside of the legal parameters prescribed by the applicable
statute’; [and] claims involving merger/double jeopardy”). Petitioner’s various
claims attack the legality of his life sentence coupled with his ineligibility for parole,
so they must be brought under the PCRA. Moore, 247 A.3d at 998 (holding void for
vagueness challenge to a life sentence without parole cognizable under the PCRA as
an illegal sentence claim); see also Scott, ___ A.3d at ___, slip op. at 15 (“[W]hile
[the p]etitioners purport to limit their challenge only to the constitutionality of
Section 6137 of the Parole Code and seek ‘mere parole eligibility,’ they are
collaterally attacking their sentences.”). The only way Petitioner can be eligible for
parole is if his life sentence is altered, which necessitates post-conviction relief under
the PCRA.13
13
As we discussed in Scott, Section 6137(a)(3) of the Parole Code also precludes inmates
serving life sentences from parole. Scott, ___ A.3d at ___, slip op. at 16. Section 6137(a)(3) limits
(Footnote continued on next page…)
7
Accordingly, Petitioner’s claims seek post-conviction relief and fall outside
of our original jurisdiction. 42 Pa. C.S. § 761(a)(1)(i). Instead, the Court of
Common Pleas of Philadelphia County, as the sentencing court, has jurisdiction over
Petitioner’s claims. See 42 Pa. C.S. § 9545 (“Original jurisdiction over a proceeding
under [the PCRA] shall be in the court of common pleas.”); Pa. R. Crim. P. 901(B)
(providing that “[a] proceeding for post-conviction collateral relief shall be initiated
by filing a petition and [three] copies with the clerk of the court in which the
defendant was convicted and sentenced”).
IV. Conclusion
Although Petitioner asserts his Petition for Review merely seeks a declaratory
judgment that Section 6137(a)(1) of the Parole Code is unconstitutional as applied
to him, it is apparent that Petitioner is launching a collateral attack on his sentence.
As the Petition is “in the nature of an application seeking . . . post-conviction relief”
and it is not ancillary to a matter pending in our appellate jurisdiction, this Court
lacks jurisdiction over the Petition pursuant to Section 761(a)(1) of the Judicial
parole eligibility until after the minimum term of imprisonment is served. Id. (citing 61 Pa. C.S.
§ 6137(a)(3)). Because Section 1102(b) of the Crimes Code sets out a mandatory minimum
sentence of life imprisonment, Petitioner has not served the minimum term of his sentence and is
therefore not eligible for parole. Id. (citing Castle v. Pa. Bd. of Prob. & Parole, 554 A.2d 625,
628 (Pa. Cmwlth. 1989)).
8
Code, 42 Pa. C.S. § 761(a)(1). Thus, we sustain the General Assembly’s preliminary
objection raising lack of jurisdiction and dismiss14 the Petition.15
__________________________________
ELLEN CEISLER, Judge
Judge Crompton did not participate in the decision of this case.
14
Normally, an erroneously filed claim must be transferred to the appropriate court with
jurisdiction pursuant to Section 5103(a) of the Judicial Code, 42 Pa. C.S. § 5103(a). However,
neither of Respondents are proper parties to this matter. Instead, the Commonwealth participates
in post-conviction proceedings. See Pa. R. Crim. P. 902(A) (“A petition for post-conviction
collateral relief shall bear the caption, number, and court term of the case or cases in which relief
is requested . . . .”); Pa. R. Crim. P. 903(A)-(B) (explaining that, upon receipt of PCRA petition,
clerk of courts shall “make a docket entry, at the same term and number as the underlying
conviction and sentence . . . and . . . place the petition in the criminal case file,” then “transmit a
copy of the petition to the attorney for the Commonwealth”); Pa. R. Crim. P. 906(A) (providing
generally that attorney for Commonwealth may elect to file answer or must do so if ordered by
court). As the Board and General Assembly are the only Respondents, dismissal is appropriate.
15
Since this Court lacks jurisdiction over this matter, we need not address Respondents’
remaining preliminary objections.
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Elmer Davenport, :
Petitioner :
:
v. : No. 244 M.D. 2019
:
Pennsylvania General Assembly and :
PA. Board of Probation and Parole, :
Respondents :
ORDER
AND NOW, this 22nd day of September 2021, the Preliminary Objections of
the Respondents are SUSTAINED with respect to this Court’s jurisdiction, and this
matter is DISMISSED.
__________________________________
ELLEN CEISLER, Judge