K.D. Green v. Tom Wolf, Governor

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
K.D. Green, :
Petitioner :
:
v. :
:
Tom Wolf, Governor of :
Pennsylvania, : No. 336 M.D. 2021
Respondent : Submitted: April 22, 2022
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: July 5, 2022
Before this Court are Governor of Pennsylvania Tom Wolf’s (Governor
Wolf) preliminary objections (Preliminary Objections) to K.D. Green’s (Green) pro
se Application for Relief Pursuant to Pennsylvania Rule of Appellate Procedure
(Rule) 123 from the Denial of Parole on August 30, 2021, by the Pennsylvania Board
of Probation and Parole (Parole Board) (Petition)1 filed in this Court’s original
jurisdiction. After review, this Court sustains Governor Wolf’s First Preliminary
Objection and transfers Green’s Petition to the Philadelphia County Common Pleas
Court.
1
On October 22, 2021, this Court ordered that Green’s application “shall be treated as a
Petition for Review [(Petition)] addressed to this Court’s original jurisdiction.” October 22, 2021
Order at 1.
Background2
On February 13, 1995, Green was adjudicated guilty of first degree
murder and sentenced to life imprisonment without the opportunity for parole
pursuant to Section 1102(a) of the Crimes Code.3 Green is currently an inmate at
the State Correctional Institution (SCI) at Benner.4
Green applied to the Parole Board for parole, and, on August 30, 2021,
the Parole Board denied Green parole, stating: “Upon review of your application for
parole and the Department of Corrections[’] [(DOC)] records of your sentencing, it
appears that you are serving a life sentence and are therefore not eligible for parole
2
The facts are those as averred by Green in the Petition.
3
Section 1102(a) of the Crimes Code provides:
First degree.--
(1) Except as provided under [S]ection 1102.1 [of the Crimes Code,
18 Pa.C.S. § 1102.1] (relating to sentence of persons under the age
of 18 for murder, murder of an unborn child and murder of a law
enforcement officer), a person who has been convicted of a murder
of the first degree or of murder of a law enforcement officer of the
first degree shall be sentenced to death or to a term of life
imprisonment in accordance with [Section 9711 of the Sentencing
Code,] 42 Pa.C.S. § 9711 (relating to sentencing procedure for
murder of the first degree).
(2) The sentence for a person who has been convicted of first degree
murder of an unborn child shall be the same as the sentence for
murder of the first degree, except that the death penalty shall not be
imposed. . . .
18 Pa.C.S. § 1102(a).
4
Although the Petition reflects that Green was an inmate at SCI-Rockview when he filed
the Petition, according to the Pennsylvania Department of Corrections’ inmate locator, he is
currently incarcerated at SCI-Benner. See www.inmatelocator.cor.pa.gov/#/Result (Inmate No.
CQ9674) (last visited July 1, 2022). Green was convicted and sentenced in Philadelphia County.
See id.
2
consideration based on [Section 6137(a) of the Prisons and Parole Code (Parole
Code)], 61 Pa.C.S. § 6137(a).”5 Petition Ex. A.
On September 23, 2021, Green filed the Petition in this Court,
challenging the constitutionality of Section 1102(a) of the Crimes Code because it
“was not passed by [] way of a [b]ill[,] and [it was] arbitrarily changed without notice
from ‘a term of life imprisonment’ to ‘life imprisonment without the right to parole,’
[which Green] became aware of after he was denied parole by the [Parole Board] on
[August 30,] 2021.”6 Petition ¶ 3. Green claims that the title and contents of Section
1102(a) of the Crimes Code fail to put a reasonable person on notice of the statute’s
contents. See Petition ¶ 8. Green also filed a Motion to Proceed In Forma Pauperis,
which this Court granted on October 22, 2021.
On November 3, 2021, Governor Wolf filed the Preliminary
Objections, arguing: (1) this Court lacks jurisdiction to decide the Petition (First
Preliminary Objection); (2) Green failed to exhaust his administrative remedies
under the Post Conviction Relief Act (PCRA)7 (Second Preliminary Objection); and
(3) Green failed to state a valid claim upon which relief may be granted (Third
Preliminary Objection).
On November 29, 2021, Green filed an answer in opposition to the
Preliminary Objections. On December 13, 2021, this Court ordered the parties to
file briefs in support of their positions, which they did.
5
Section 6137(a)(1) of the Parole Code specifies that the Parole Board “may release on
parole any offender to whom the power to parole is granted to the [Parole B]oard . . . , except an
offender condemned to death or serving life imprisonment[.]” 61 Pa.C.S. § 6137(a)(1).
6
Article III, section 1 of the Pennsylvania Constitution declares: “No law shall be passed
except by bill, and no bill shall be so altered or amended, on its passage through either House, as
to change its original purpose.” PA. CONST. art. III, § 1.
7
42 Pa.C.S. §§ 9541-9546.
3
Discussion
Initially, the law is well settled:
In ruling on preliminary objections, we must accept as true
all well-pleaded material allegations in the petition for
review, as well as all inferences reasonably deduced
therefrom. The Court need not accept as true conclusions
of law, unwarranted inferences from facts, argumentative
allegations, or expressions of opinion. In order to sustain
preliminary objections, it must appear with certainty that
the law will not permit recovery, and any doubt should be
resolved by a refusal to sustain them.
A preliminary objection in the nature of a demurrer admits
every well-pleaded fact in the [petition for review] and all
inferences reasonably deducible therefrom. It tests the
legal sufficiency of the challenged pleadings and will be
sustained only in cases where the pleader has clearly failed
to state a claim for which relief can be granted. When
ruling on a demurrer, a court must confine its analysis to
the [petition for review in the nature of a] complaint.
Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010) (citations omitted).
“[C]ourts reviewing preliminary objections may not only consider the facts pled in
the [petition for review], but also any documents or exhibits attached to it.” Allen v.
Dep’t of Corr., 103 A.3d 365, 369 (Pa. Cmwlth. 2014).
First Preliminary Objection
Governor Wolf first objects to Green’s Petition under Pennsylvania
Rule of Civil Procedure (Civil Rule) 1028(a)(1) on the basis that this Court lacks
jurisdiction. Pa.R.Civ.P. 1028(a)(1). Governor Wolf specifically contends that, as
this Court declared in Dockery v. Wolf, 259 A.3d 566 (Pa. Cmwlth. 2021), Section
761(a)(1)(i) of the Judicial Code, 42 Pa.C.S. § 761(a)(1)(i), explicitly excludes
PCRA actions from this Court’s original jurisdiction.
4
The Pennsylvania Supreme Court has ruled that an inmate’s claim that
his continued incarceration under Section 1102(a) of the Crimes Code is
unconstitutional because he was not afforded notice that his life sentence was
without parole is an illegal sentence claim cognizable under the PCRA.8 See
Commonwealth v. Moore, 247 A.3d 990 (Pa. Cmwlth. 2021). Section 761(a)(1)(i)
of the Judicial Code specifies: The Commonwealth Court shall have original
jurisdiction of all civil actions or proceedings against the Commonwealth
government, including any officer thereof, acting in his official capacity, 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 court[.]” 42 Pa.C.S. § 761(a)(1)(i) (emphasis added).
In Dockery, Dockery filed a petition for review against Governor Wolf
and others in this Court’s original jurisdiction challenging, inter alia, the
constitutionality of the sentencing court’s authority to impose a life sentence without
parole under Section 1102(b) of the Crimes Code, 18 Pa.C.S. § 1102(b) (relating to
second degree murder), because such language is not included in that statutory
provision. Governor Wolf filed preliminary objections on the basis that this Court
lacked jurisdiction over Dockery’s PCRA claim. Because, based on the claims
raised and relief sought, Dockery’s petition for review was “in the nature of [an]
application [] for . . . post-conviction relief[,]” Dockery, 259 A.3d at 571 (quoting
8
Section 9542 of the PCRA provides, in relevant part:
This subchapter provides for an action by which . . . persons serving
illegal sentences may obtain collateral relief. The action established
in this subchapter shall be the sole means of obtaining collateral
relief and encompasses all other common law and statutory
remedies for the same purpose that exist when this subchapter takes
effect, including habeas corpus and coram nobis.
42 Pa.C.S. § 9542.
5
42 Pa.C.S. § 761(a)(1)(i)), and it was not ancillary to any proceedings within this
Court’s appellate jurisdiction, this Court sustained the preliminary objections.
Here, as in Dockery, Green challenges that his life sentence violated the
Pennsylvania Constitution because the Crimes Code sentencing provision did not
specify that his life sentence was without the opportunity for parole. Green’s
Petition similarly presents an illegal sentence claim cognizable under the PCRA. See
Moore; see also Dockery. Because Green’s Petition does not identify, and this Court
cannot glean therefrom, that Green’s PCRA application is ancillary to any
proceedings within this Court’s appellate jurisdiction, this Court lacks original
jurisdiction over the Petition. See 42 Pa.C.S. § 761(a)(1)(i); see also Dockery.
Accordingly, this Court sustains Governor Wolf’s First Preliminary Objection.
Nonetheless, we will not dismiss the Petition. Instead, we
will transfer the matter to the “proper tribunal” pursuant to
Section 5103(a) of the Judicial Code, 42 Pa.C.S. §
5103(a), which provides:
(a) General rule.--If an appeal or other matter is
taken to or brought in a court or magisterial district
of this Commonwealth which does not have
jurisdiction of the appeal or other matter, the court
or magisterial district judge shall not quash such
appeal or dismiss the matter, but shall transfer the
record thereof to the proper tribunal of this
Commonwealth, where the appeal or other matter
shall be treated as if originally filed in the
transferee tribunal on the date when the appeal or
other matter was first filed in a court or magisterial
district of this Commonwealth. A matter which is
within the exclusive jurisdiction of a court or
magisterial district judge of this Commonwealth
but which is commenced in any other tribunal of
this Commonwealth shall be transferred by the
other tribunal to the proper court or magisterial
district of this Commonwealth where it shall be
treated as if originally filed in the transferee court
or magisterial district of this Commonwealth on
the date when first filed in the other tribunal.
6
As the Court lacks jurisdiction over this matter, given that
the action is cognizable under the PCRA, the matter shall
be transferred to the appropriate court of common pleas.
See 42 Pa.C.S. § 9545(a) (providing that “[o]riginal
jurisdiction over a proceeding under this subchapter 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”). In this case, the
proper court is the Court of Common Pleas of
[Philadelphia] County.
Accordingly, we sustain Governor Wolf’s [First]
[P]reliminary [O]bjection asserting lack of
jurisdiction . . . , and we transfer the matter to the Court of
Common Pleas of [Philadelphia] County, the court of
record in which [Green] was convicted and sentenced.
Henry v. Wolf, 256 A.3d 48, 53 (Pa. Cmwlth. 2021) (footnotes omitted); see also
Dockery.
As the Court lacks jurisdiction over this matter, we do not
address the remaining [P]reliminary [O]bjections brought
by Governor Wolf . . . . Moreover, we note that our
transfer of this matter to the sentencing court for
consideration as an action under the PCRA may require
the sentencing court to address [the] additional issues . . . .
Given this Court’s lack of jurisdiction, however, we are
without the ability to address them.
Henry, 256 A.3d at 53 n.9.
Conclusion
Based on the foregoing, Governor Wolf’s First Preliminary Objection
is sustained, and the matter shall be transferred to the Philadelphia County Common
Pleas Court for further disposition.
_________________________________
ANNE E. COVEY, Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
K.D. Green, :
Petitioner :
:
v. :
:
Tom Wolf, Governor of :
Pennsylvania, : No. 336 M.D. 2021
Respondent :
ORDER
AND NOW, this 5th day of July, 2022, Governor of Pennsylvania Tom
Wolf’s Preliminary Objection raising lack of jurisdiction is hereby SUSTAINED,
and the Prothonotary is directed to transfer this matter to the Philadelphia County
Common Pleas Court for further disposition.
Jurisdiction is relinquished.
_________________________________
ANNE E. COVEY, Judge