P. Katonka v. PA Board of Parole

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Paul Frank Katonka, :
Petitioner :
:
v. : No. 707 C.D. 2021
: Submitted: July 1, 2022
Pennsylvania Parole Board, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE DUMAS FILED: December 29, 2022
Paul Frank Katonka (Katonka) petitions for review of the Pennsylvania
Parole Board’s (Board) decision, mailed May 24, 2021, denying his request for
administrative relief. Victoria H. Vidt, Esq. (Counsel), Katonka’s court-appointed
counsel, has filed an application to withdraw because the appeal lacks merit. We
grant Counsel’s application to withdraw and affirm the Board’s decision.
I. BACKGROUND
On November 26, 2012, Katonka pleaded guilty to sixteen counts
arising from the sexual abuse of his stepdaughter. The trial court sentenced Katonka
to an aggregate term of 8 to 16 years of incarceration, followed by 19 years of
probation. Additionally, the trial court determined that Katonka was a Tier III
offender under the Sexual Offender Registration and Notification Act (SORNA).1
Katonka did not file a direct appeal.2
1
42 Pa.C.S. §§ 9799.10 to 9799.41.
2
Katonka has filed numerous unsuccessful appeals challenging collateral aspects of his
sentence, but they are not pertinent to the instant matter.
Upon his parole, Katonka agreed to certain conditions imposed on
sexual offenders, including submission to polygraph examinations. See Standard
Special Conditions for Sex Offenders, 3/6/18, at 1. However, Katonka was
unsuccessfully discharged from his sexual offender treatment program at FAACT
after, inter alia, failing a polygraph examination. See FACCT Discharge Summ.,
6/9/20, at 1.3 Shortly thereafter, a warrant was issued for Katonka’s arrest for
violation of his parole, and he was taken into custody. See Warrant, 6/11/20, at 1.
The Board notified Katonka of his technical violation as well as his
rights to a hearing and counsel. See Notice of Charges and Hearing, 7/7/20, at 1;
Offender Rights and Bd. Hr’gs, 7/7/20, at 1. Katonka signed a document waiving
those rights and admitting to the violation. See Waiver of Violation Hr’g &
Counsel/Admission Form (Waiver), 7/7/20, at 1. Thereafter, the Board recommitted
Katonka as a technical parole violator due to his failure to successfully complete sex
offender treatment. See Notice of Bd. Decision, 7/10/22, at 1.
Katonka filed administrative remedies forms on August 19, August 26,
and September 4, 2020. By order dated April 5, 2021 and mailed May 24, 2021, the
Board denied Katonka’s requests for administrative relief. Katonka pro se and
timely filed a petition for review with this Court. The Court appointed Counsel to
3
Katonka was unsuccessfully discharged due to failure to follow through with the
recommended treatment plan; failure to actively and productively participate in the sex offender
specific outpatient treatment program due to his inability to be truthful with his treatment provider;
and monitoring and maintenance polygraph results indicating “significant” responses when asked
questions about engaging in continued deviant sexual behavior. See FACCT Discharge Summ.,
6/9/20, at 1. The discharge further noted that Katonka’s treatment plan goals were not attained, he
had significant indicated responses, and had continued to engage in high-risk behaviors. Id.
2
represent Katonka in this appeal, but Counsel has filed an application to withdraw
and an Anders4 Brief.
II. TURNER/FINLEY REQUIREMENTS
Accordingly, we first determine whether Counsel’s application to
withdraw complies with the Turner/Finley requirements. A Turner/Finley letter
must detail “the nature and extent of counsel’s diligent review of the case, listing the
issues which the petitioner wants to have reviewed, explaining why and how those
issues lack merit, and requesting permission to withdraw.” Zerby v. Shanon, 964
A.2d 956, 960 (Pa. Cmwlth. 2009) (citation omitted). Further, counsel must “also
send to the petitioner: (1) a copy of the ‘no-merit’ letter/brief; (2) a copy of counsel’s
petition to withdraw; and (3) a statement advising petitioner of the right to proceed
pro se or by new counsel.” Id. (citation omitted). If counsel satisfies these technical
requirements, we must then conduct our own review of the merits of the case. Id. If
we agree that the claims are without merit, we will permit counsel to withdraw and
deny relief. Id.4
See Anders v. California, 386 U.S. 738 (1967). This Court has held that “where there is
a constitutional right to counsel, counsel seeking to withdraw from representation of a petitioner
in an appeal of a determination of the Board should file an Anders brief.” Hughes v. Pa. Bd. of
Prob. and Parole, 977 A.2d 19, 25 (Pa. Cmwlth. 2009). In all other cases, it is sufficient that
counsel file a Turner/Finley no-merit letter. Id. at 26; see Commonwealth v. Turner, 544 A.2d 927(Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). In appeals from
parole revocation, a constitutional right to counsel arises only where a parolee has “a colorable
claim” that he has “not committed the alleged violation of the conditions upon which he is at
liberty” or that, “even if the violation is a matter of public record or is uncontested, there are
substantial reasons which justified or mitigated the violation and make revocation inappropriate,
and that the reasons are complex or otherwise difficult to develop or present.” Hughes, 977 A.2d
at 26 (quoting Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973)). Here, Katonka has a statutory
rather than a constitutional right to counsel because he admitted to the parole violation with which
the Board charged him. See Waiver. Regardless, we decline to deny Counsel’s application to
withdraw on this basis. See Seilhamer v. Pa. Bd. of Probation and Parole, 996 A.2d 40, 42-43
(Pa. Cmwlth. 2010) (noting the Court may accept an Anders brief when a Turner/Finley letter
would suffice).
3
Upon review, we conclude Counsel has satisfied the technical
requirements of Turner/Finley. Counsel discussed the nature of her review,
identified the issues raised in Katonka’s administrative appeal, and explained why
those issues lack merit. Counsel’s Br. at 11-40. Counsel sent a copy of the brief and
application to withdraw to Katonka and advised him of his right to proceed pro se
or with new counsel. See Appl. to Withdraw as Counsel, 10/22/21, at 1-5; Counsel’s
Br. at Appendix E. Katonka has not retained new counsel and has not filed a pro se
response. Accordingly, we review the merits of Katonka’s appeal.
III. ISSUES
Counsel has identified a number of issues raised in Katonka’s pro se
appeal. First, Katonka argues that the polygraph examination was the sole basis for
his parole revocation, contrary to established case law. Counsel’s Br. at 12. Second,
Katonka contends that he was coerced to sign the waiver forms by his parole agent.
Id. at 13. Third, the administration of the polygraph, requiring Katonka to
purposefully lie to establish a baseline, violates the free exercise of his religion
pursuant to the First Amendment of the United States Constitution and Article 1,
Section 3 of the Pennsylvania State Constitution. Id. Fourth, Katonka argues that
the use of polygraphs as mandatory treatment violates his right to protect his
reputation under the Pennsylvania Constitution. Id. Fifth, Katonka argues that an
arrest based on the therapeutic polygraph is a violation of the Fourth Amendment of
the United States Constitution as an unreasonable search and seizure, and a violation
of the Fourteenth Amendment as a violation of due process. Id.
4
IV. DISCUSSION5
A. Polygraph as Sole Basis for Revocation
First, Katonka contends that his parole revocation was based solely on
the polygraph examination, contrary to the established case law of Commonwealth
v. A.R., 80 A.3d 1180 (Pa. 2013).6 Counsel’s Br. at 14. This claim lacks merit.
Katonka’s reliance on A.R. is misplaced because the Pennsylvania
Supreme Court did not adopt the Superior Court’s conclusion that polygraph results
cannot serve as the sole basis for a probation violation. See A.R., 80 A.3d at 1184
n.6. Further, Katonka was discharged from sex offender treatment due to 1) his
failure to follow through with recommended treatment; 2) his failure to actively and
productively participate in outpatient treatment as evidenced by his failure to be
truthful; and 3) his failure of the polygraph exam by having significant responses
pertaining to engaging in continued deviant sexual behavior. See Supervision
History, 6/17/20. Finally, Katonka signed a waiver admitting to violating his parole
condition. See Waiver. Thus, the Board relied upon substantial evidence to revoke
Katonka’s parole; the polygraph did not constitute the sole reason for revocation;
5
Our standard of review is limited to determining whether the Board committed an error
of law, whether its findings are supported by substantial evidence, and whether its decision
violated constitutional rights. 2 Pa.C.S. § 704.
6
In A.R., the defendant was convicted of various charges as a result of an incident where
he videotaped his minor stepdaughter undressing in the bathroom. Id. at 1180. He was ordered to
undergo a sex offender evaluation and follow all treatment recommendations, which included
therapeutic polygraph examinations. Id. at 1180-81. On appeal, the Superior Court affirmed the
admission of the results of the defendant’s therapeutic polygraph examination into evidence at his
violation of probation (VOP) hearing. Id. at 1181. The Court further held that such results were
admissible to support the underlying violation so long as the results were not the sole basis for the
revocation petition, they did not reveal uncharged criminal conduct on the part of the defendant,
and they were not used for purposes of the investigation of criminal conduct. Id. at 1181-82. The
Pennsylvania Supreme Court affirmed in part but expressly declined to address the Superior
Court’s conclusion that therapeutic polygraph examination results cannot serve as the sole basis
for probation revocation. Id. at 1184 n.6.
5
and regardless, Katonka’s reliance on A.R. is misplaced. A.R., 80 A.3d at 1184 n.6;
Zerby, 964 A.2d at 960.
B. Alleged Coercion
In his second claim, Katonka contends that he was coerced to sign the
waiver forms by his parole agent. Counsel’s Br. at 17. According to Katonka, his
parole officer told Katonka that if he wanted an attorney and a hearing, he would
remain incarcerated for a lengthy period of time due to the COVID-19 pandemic and
limits placed upon attorney visitation. Id. at 17-18.
The waiver form used by the Board has been upheld by various courts
of this state as constitutional. See, e.g., Prebella v. Pa. Bd. of Prob. and Parole, 942
A.2d 257, 261-62 (Pa. Cmwlth. 2008) (requiring only that the Board follow its own
regulations and provide “necessary information” to the offender prior to signing the
form). The form provided Katonka notice of his rights to a hearing and to counsel.
See Waiver. Katonka then waived these rights “with full knowledge and
understanding . . . of [his] own free will, without any promise, threat or coercion.”
Waiver. The waiver form signed by Katonka conforms to the required legal
standards. See Prebella, 942 A.2d at 261-62. Accordingly, this issue lacks merit.
Zerby, 964 A.2d at 960.
C. Violation of First Amendment Free Exercise of Religion
In his third claim, Katonka contends that the administration of a
polygraph examination that requires a parolee to lie to establish a testing baseline
violates the free exercise of his religion pursuant to the First Amendment of the
United States Constitution, U.S. Const. amend. I; and article 1, section 3 of the
Pennsylvania Constitution, Pa. Const. art I, § 3. Counsel’s Br. at 20. This claim is
without merit.
6
“To determine whether religious rights are unconstitutionally
impinged, there are no bright line tests, but instead an analysis is made of the statute
at issue and a balancing of the interests involved.” Kocher v. Bickley, 722 A.3d 756,
759 (Pa. Cmwlth. 1999).7 Provided that the legislation does not facially discriminate
against a particular religious belief or against religion generally, the government
need only demonstrate that a challenged requirement is neutral, uniform, and
rationally related to a legitimate public interest. Kocher, 722 A.2d at 759 (citing
Nordlinger v. Hahn, 505 U.S. 1 (1992) (regulatory statute without unconstitutional
classification is accorded a strong presumption of validity and is valid if there is a
rational basis for the law, i.e., reasonably related to accomplishing a legitimate state
interest)).
The use of therapeutic polygraphs is not enshrined in state statute but,
rather, is contained within the standard special conditions for sex offenders on
parole. Katonka’s special conditions included mandatory sex offender evaluation
treatment from an approved provider and successful completion “of all treatment
recommendations, including polygraph examinations[.]” Standard Special
Conditions for Sex Offenders, 3/7/2018, at 1. As a standard special condition, this
7
Kocher involved applicants for a learner’s permit alleging that the requirement to provide
a social security number violated their religious rights under the free exercise clause. Kocher, 722
A.2d at 758. The Kocher appellants were not, of course, parolees. However, the general test for
determining whether a particular statute violates the First Amendment free exercise clause,
generally, is the same regardless of the context in which it is applied. See, e.g., Meggett v. Dep’t
of Corr., 892 A.2d 872 (Pa. Cmwlth. 2006) (prisoner argued that regulations regarding the length
and styling of inmate’s hair violated his right to freedom of religion); Kaite v. Uenmployment
Comp. Bd. of Rev., 175 A.3d 1132 (Pa. Cmwlth. 2017) (unemployment claimant alleged it was
against her religious beliefs to be fingerprinted); Thomas v. Corbett, 90 A.3d 789 (Pa. Cmwlth.
2014) (complaint against state governor and Department of Corrections asserting violations of
constitutional rights and Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C.
§§ 2000cc-1-2000cc-5).
7
applies to all sex offenders regardless of religious affiliation in a facially neutral
manner. On its face, the requirement of a therapeutic polygraph test does not
implicate religion in any way.
Further, Pennsylvania courts have upheld the use of therapeutic
polygraphs in the context of other constitutional challenges, observing that “the
therapeutic polygraph is an essential tool for a therapist whose job it is to reveal an
offender’s deception and encourage him or her to confront his or her urges and
deviant behavior.” Commonwealth v. Shrawder, 940 A.2d 436, 443 (Pa. Super.
2007) (holding that therapeutic polygraphs were a reasonable requirement for
probation and rejecting Fifth Amendment, U.S. Const. amend V, challenge). The
tests “further the primary goal of counseling as part of a sexual offender’s sentence,
which is to rehabilitate the offender and prevent recidivism, with reasonably small
incremental deprivations of the offender’s liberty.” Id. Courts of this state have also
long upheld the notion that the regulation and treatment of sex offenders promotes
the legitimate state interest of protecting public safety and welfare. Jackson v.
Commonwealth, 143 A.3d 468, 475 n.11 (Pa. Cmwlth. 2016) (discussing the
regulation and treatment of sex offenders in the context of sex offender registration
laws).
Katonka makes no averment that he subscribes to a specific faith or
which specific tenet of this faith is violated by the imposition of therapeutic
polygraphs. Rather, he makes vague citations to “the Halleluyah Scriptures” and
contends that “lying is sinful and not to be done to be in right standing with my
Creator.” Counsel’s Br. at Appendix C. However, even assuming that his religious
beliefs are “sincerely held,” see, e.g., Meggett, 892 A.2d at 881, “states are free to
enact and enforce facially neutral laws of general applicability even though they may
8
interfere with the religious practices of some individuals.” St. Elizabeth’s Child
Care Ctr. v. Dep’t of Pub. Welfare, 989 A.2d 52, 55 (Pa. Cmwlth. 2010). The
imposition of therapeutic polygraph examinations is a facially neutral requirement
of sex offender treatment, in which the state has a legitimate interest of protecting
public safety and welfare. Jackson, 143 A.3d at 475 n.11; St. Elizabeth’s, 989 A.2d
at 55; Kocher, 722 A.2d at 759. Accordingly, this issue is without merit. Zerby, 964
A.2d at 960.
D. Violation of Right to Reputation
In Katonka’s fourth claim, he contends that the use of polygraphs as
mandatory treatment violates his right to protect his reputation under article 1,
section 1 of the Pennsylvania Constitution. Counsel’s Br. at 30. He claims that he
is being labeled as a “liar” and has a “mark of Cain” placed upon him due to the use
of polygraph testing and that, accordingly, his reputation interest is violated. Id. at
30-31.
The Pennsylvania Constitution provides for certain “inherent and
indefeasible rights” which includes the protection of reputation. Pa. Const. art. I, §
1; see also Pa. Bar Ass’n v. Cmwlth. of Pa., 607 A.2d 850 (Pa. Cmwlth. 1992)
(recognizing the right to reputation as a fundamental right under the state
constitution). When considering laws infringing upon fundamental rights such as
the right to reputation, courts use a substantive due process analysis. Nixon v.
Commonwealth, 839 A.2d 277, 286-87 (Pa. 2003). Under this analysis, “courts must
weigh the rights infringed upon by the law against the interest sought to be achieved
by it,” as well as considering the relationship between the law and the interest. Id.Where laws infringe upon fundamental rights, courts apply a strict scrutiny test
wherein “a law may only be deemed constitutional if it is narrowly tailored to a
9
compelling state interest.” Id. When considering the right to reputation, the “inquiry
must necessarily focus on the extent to which the information [affecting reputation]
is readily available and/or accessible.” R. v. Dep’t of Pub. Welfare, 636 A.2d 142,
149 (Pa. 1994).
Katonka has not demonstrated that the Board has infringed upon his
right to reputation. The fact that Katonka was required to undergo polygraph
examination is not known to the general public, nor are the results of the polygraph
examination. Rather, the results are disseminated only between the examiner, the
Board, and Katonka himself. In any event, Katonka, who is required to register
publicly as a sex offender, would not suffer any deprivation of reputation that he has
not already undergone as a result of his registration requirements, so any adverse
effects on his reputation are limited.8 See, e.g., R., 636 A.2d at 150 (noting that
statute limits disclosure of defendant’s identity to small number of people and
adverse effects are accordingly limited). Accordingly, this issue lacks merit. Zerby,
964 A.2d at 960.
E. Unreasonable Search and Seizure
In Katonka’s fifth issue, he contends that an arrest based upon the
therapeutic polygraph is a violation of the Fourth Amendment as an unreasonable
search or seizure, see U.S. Const. amend. IV. Counsel’s Br. at 35. As Counsel notes,
Katonka is not “complaining about the lack of a search warrant . . . rather, he
[contends] that a polygraph examination cannot be a compelling reason for a parole
officer to arrest him.” Id. at 37. Counsel avers that Katonka provided no case law
8
Further, we note that the Commonwealth has a compelling interest in public safety. See,
e.g., Commonwealth v. Howe, 842 A.2d 436, 446 (Pa. Super. 2004) (noting that the defendant’s
interest in avoiding disclosure of personal information via sex offender registration was
outweighed by the Commonwealth’s compelling interest in public safety and protecting its citizens
from harm).
10
support for this proposition and that she was unable to locate any case law as well.
Counsel’s Br. at 37. Our own research has not returned any convincing authority to
support Katonka’s unpersuasive argument.
Further, as Counsel correctly notes, the Board is authorized to recommit
a parolee as a technical violator whenever that parolee violates the terms and
conditions of his parole. 61 Pa. C.S. § 6138(c)(1). Katonka admitted to violating
the terms of his parole, and accordingly, the Board was empowered by statute to take
him into custody. See Waiver; 61 Pa. C.S. § 6138(c)(1). Accordingly, this issue
lacks merit. Zerby, 964 A.2d at 960.
F. Due Process Violation
In Katonka’s sixth and final issue, he contends that the use of the
therapeutic polygraph is a violation of Due Process under the Fourteenth
Amendment of the United States Constitution, U.S. Const. samend. XIV. Counsel’s
Br. at 38.
With regard to the due process requirements afforded to parolees, the
safeguards include: 1) written notice of the claimed violations of parole; 2)
disclosures of evidence against the parolee; 3) the opportunity to be heard in person
and to present witnesses and documentary evidence; 4) the right to confront and
cross-examine adverse witnesses; 5) a neutral and detached body such as a parole
board; and 6) a written statement by the factfinders as to the evidence relied upon
and reasons for revoking parole. Blackwell v. Pa. Bd. of Prob. and Parole, 516 A.2d
856, 858 (Pa. Cmwlth. 1986). Counsel reviewed the certified record and found no
evidence of any failure to inform Katonka of the reasons for his parole violation or
any showing of the lack of a neutral and detached board reviewing his case.
Counsel’s Br. at 39. The Board provided Katonka with written notice of the charges,
11
its findings, and the reasons for those findings. Id. Further, Katonka executed a valid
waiver of counsel form, admitting the violations and waiving his right to a hearing.
Id. Counsel concludes that there was no evidence of any denial of due process and
the record supports this conclusion. Id. Accordingly, this issue lacks merit. Zerby,
964 A.2d at 960.
V. CONCLUSION
For these reasons, we conclude Counsel has fulfilled the requirements
of Turner/Finley, and our independent review of the record confirms that Katonka’s
appeal lacks merit. Accordingly, we grant Counsel’s application to withdraw her
appearance and affirm the Board’s decision. See Zerby, 964 A.2d at 960.
LORI A. DUMAS, Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Paul Frank Katonka, :
Petitioner :
:
v. : No. 707 C.D. 2022
:
Pennsylvania Parole Board, :
Respondent :
ORDER
AND NOW, this 29th day of December, 2022, the Application to
Withdraw, filed by appointed counsel, Victoria H. Vidt, Esq., on October 22, 2021,
is GRANTED; further, the decision of the Pennsylvania Parole Board to deny
Petitioner’s administrative appeal, mailed May 24, 2021, is AFFIRMED.
LORI A. DUMAS, Judge