DocketNumber: 113 M.D. 2009
Judges: Jubelirer, Leavitt, Friedman
Filed Date: 4/28/2010
Status: Precedential
Modified Date: 10/26/2024
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 414
Elias Nieves (Nieves) has filed a petition for review (Petition) in this court's original jurisdiction against the Pennsylvania Board of Probation and Parole (Board).1 Nieves and the Board each seek summary relief. We grant summary relief to the Board and deny summary relief to Nieves.
Nieves is a convicted sex offender incarcerated at the State Correctional Institution in Coal Township (SCI-Coal). On May 30, 2008, the Board issued a decision to parole Nieves to a Community Corrections Center (CCC) for a minimum of nine months upon his completion of a sex offender program. (Petition, ex. B.) As a result, the Department of Corrections (Department) placed Nieves on a waiting list for one of fifty beds reserved for sex offenders in the Department's CCCs.
On February 2, 2009, following the adoption of new procedures for the release of violent offenders, the Board modified its decision, stating that Nieves would be released on parole "upon completion of [a] sex offender program to a specialized CCC with violence prevention programming. . . ." (Petition, ex. C.) As a result of this change, the Department placed Nieves on a waiting list for one of ten beds reserved for violent sex offenders in the Department's specialized CCCs.
On March 5, 2009, Nieves filed his Petition with this court, asserting that the Board informed Nieves that he will need a home plan before he can receive a CCC bed date;2 however, the Board rejected all of his home plan proposals because the residences were too close to schools. Nieves points out that: (1) section 9798 of Megan's Law3 does not prohibit sexually violent predators from living close to schools; (2) section 9798 requires only that notice be given to schools when sexually violent predators live nearby; and (3) although Nieves is a sex offender, there has been no determination that he is a sexually violent predator under Megan's Law.4 Nieves also asserts that, even though the Board rejected his home plan proposals,
Nieves seeks an order in mandamus compelling the Board to issue an order releasing him on parole. Nieves argues that the Board has a duty to do so because: (1)
The Board filed preliminary objections to the Petition, but later withdrew them. The Board subsequently filed an answer to the Petition with new matter. In its new matter, the Board alleged the following undisputed facts.6
In July 1987, Nieves raped a twenty-five-year-old woman at knifepoint in her home. Nine days later, Nieves raped a twelve-year-old girl at knifepoint. The following year Nieves was convicted of, and sentenced for, rape, statutory rape, indecent assault, involuntary deviate sexual intercourse, corruption of the morals of a minor, terroristic threats and recklessly endangering another person. He received an aggregated sentence of sixteen years and eleven months to forty years.7
On May 30, 2008, the Board issued a decision to grant Nieves parole to a CCC on the condition that he completes a sex offender program.8 The Board's decision stated that Nieves was required to have an approved home plan prior to his release from the CCC residency. The Board then requested a CCC bed date from the Department. Nieves submitted five home plans to the Board, but the Board rejected them pursuant to a Board policy stating that a sex offender's home plan may not be within 1,000 feet of a school, day care center or playground when one of the sex offender's victims was under eighteen years of age at the time of the offense.9
On February 2, 2009, the Board amended its conditional grant of parole to require *Page 417 Nieves to spend time at a specialized CCC with violence prevention programming after Nieves completes a sex offender program. Nieves has completed a sex offender program, and the Board is now waiting for a specialized CCC bed date from the Department before the Board actually releases Nieves on parole.
In its new matter, the Board argues that mandamus does not lie to compel the Board to issue a release order because: (1) the legislature has repealed
Mandamus is an extraordinary writ available to compel performance of a ministerial duty where there exists a clear legal right in the plaintiff, a corresponding duty in the defendant and the lack of any other adequate and appropriate remedy. Lennitt v. Department of Corrections,
The provision at
61 P.S. § 315 provided: [N]o prisoner, who has been sentenced to a minimum and maximum imprisonment, after such prisoner has served the minimum sentence, shall be detained in any penal institution because of the inability of such prisoner to procure a sponsor who shall be satisfactory to the board of inspectors or trustees of such penal institution. . . .
However, section 21 of the Parole Act, formerly 61 P.S. § 331.21, gave the Board power and discretion to release a prisoner on parole after expiration of the prisoner's minimum term depending on the considerations set forth in section 19 of the Parole Act, formerly 61 P.S. § 331.19.11 To the *Page 418
extent Nieves would construe
Because we conclude that the Board has no duty to issue a release order for Nieves pursuant to
Because we conclude that the Board's modification of its May 30, 2008, decision does not violate the ex post facto rights of Nieves, we grant summary relief to the Board and deny summary relief to Nieves on this issue.
Because we conclude that the Board's modification of its May 30, 2008, decision does not violate the due process rights of Nieves, we grant summary relief to the Board and deny summary relief to Nieves on this issue.
Nieves is correct about the lack of residency restrictions in section 9798 of Megan's Law. However, that silence, by itself, is not sufficient to create a mandatory duty in the Board to impose no residency restrictions on sex offenders or sexually violent predators whose victims have been minors.
A person who has been convicted of a sexually violent offense [which includes rape] . . . and who is determined to be a sexually violent predator . . . due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses.
Section 9792 of Megan's Law,
When the Board grants parole to a sex offender or a sexually violent predator, the Board has a duty to "collect registration information from the offender or sexually violent predator and forward that registration information to the Pennsylvania State Police." Section 9795.2(a)(4)(i) of Megan's Law,
The Board also has a duty to inform paroled sex offenders and sexually violent predators of their obligation to register and to provide residence information to the Pennsylvania State Police. Section 9799.2(1) of Megan's Law,
From this statutory scheme, it is clear that the legislature contemplated the Board's release of sex offenders and sexually violent predators on parole. To assist the Board in determining whether an inmate is likely to engage in predatory sexually violent offenses while on parole, the legislature made available the expertise of the State Sexual Offenders Assessment Board. However, the legislature did not mandate that the Board utilize that resource. The only duties imposed on the Board are the duty to notify the Pennsylvania State Police of a parolee's residence and the duty to inform parolees of their duty to register their residences. The Board has no duty under Megan's Law to approve, without restriction, the location of the residence of a sex offender or sexually violent predator.
In Fross, the federal district court invalidated an Allegheny County ordinance prohibiting sex offenders from residing within 2,500 feet of a child care facility, community center, public park, recreation facility or school. The court held that the ordinance was in conflict with, and was preempted by, Megan's Law. The court stated:
Id. at 658-59 (citation omitted). The court ended by stating that the ordinance conflicts with state law by prohibiting that which state law allows, i.e., state law allows even the most egregious offenders to live within 2,500 feet of a school, college or day care center, provided the institutions have notice. Id.The ordinance stands as an obstacle to attaining the objectives of rehabilitating and reintegrating offenders and diverting appropriate offenders from prison by placing strict limits on the areas where they can live. The County's "Restricted Residency" map itself demonstrates the difficulty that an offender would have locating residential housing in a permitted area. The vast majority of the County, and virtually all of the City of Pittsburgh, falls within an area of restricted residency. In addition, there has been no dispute that the named plaintiffs in this case, as well as others pending in this court, have been forced to relocate established residencies under the ordinance. The same pattern will inevitably occur as long as the ordinance is in place. Rehabilitation and reintegration depend on the creation and maintenance of a stable environment and support system, close to family ties, employment, and treatment options. Pushing offenders out of the communities from which they came, and into outlying, unfamiliar suburbs interferes with the state's goals of rehabilitation and reintegration.
Moreover, there has been no dispute that many offenders have been refused release, even though they have been deemed eligible under Pennsylvania's probation and parole system, because housing cannot be located in compliance with the ordinance.
However, the court in Fross also recognized that, pursuant to parole laws, "[a]ll parolees must obtain approval of the residence to which he will be released from confinement and obtain written permission to make any change in residence. Likewise, the conditions of parole may include residing in an approved residence, and notifying the supervising agent as to any change thereto." Id. at 657. The court also recognized that the Board has a policy "to not approve residences for those convicted of sex offenses in which the victim is a minor if they are located within two blocks of a school[,] day care facility, or playground." Id. at 659. The court then pointed out that the local ordinance conflicts with the parole laws and the Board's policy. Thus, although the court in Fross pointed out that the residency restrictions in the local ordinance may make it difficult to find places for sex offenders and sexually violent predators to reside, the court did not preclude the Board from restricting the location of residences pursuant to its policy. *Page 421
The court's analysis in Fross suggests that the legislature might have chosen to omit residency restrictions from Megan's Law in deference to the Board's power and authority to approve residences for all parolees under
In so holding, the court pointed out that: (1) while it is not identical to the traditional practice of banishment as a form of punishment, it prevents the parolee from residing in large areas of a community; (2) because the law applies to every sex offender, it does not consider how dangerous a particular parolee may be to public safety; (3) it poses a constant threat of the parolee's eviction from a residence because there are no guarantees that a school or day care center will open within 1,000 feet of any given location; and (4) it is irrational because it prohibits parolees from residing (i.e., sleeping at night when no children are present) within 1,000 feet of areas where children congregate, but it does not prohibit parolees from spending all day at a school, day care center or playground when children are present. Id.
Here, however, Nieves does not argue that the Board's policy violates his ex post facto rights. Even if Nieves had made that argument, we would have disagreed because the federal and state constitutions prohibit ex post factolaws, and the Board's policy is not a law.14
Accordingly, we grant summary relief to the Board and deny summary relief to Nieves on this issue.
Nieves also argues that
Even if