E. Davenport v. PA General Assembly & PBPP

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 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 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.

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 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 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

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)). 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.

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