            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David Manning Stodghill,                        :
                       Petitioner               :
                                                :
                       v.                       :    No. 1 M.D. 2014
                                                :    SUBMITTED: June 19, 2015
Pennsylvania Board of Probation                 :
and Parole,                                     :
                        Respondent              :

BEFORE:        HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
               HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION BY
JUDGE LEADBETTER                                    FILED: August 27, 2015


               Before the court is a motion of Petitioner, David Stodghill, seeking
judgment on the pleadings. In his pro se petition for review, and in this motion,
Stodghill asks us to order the Pennsylvania Board of Probation and Parole (Board)
to consider him for parole or, otherwise, to order his release.1 Although not so
characterized by Stodghill, his claim that the Board has a statutory duty to consider
him for parole is in the nature of a petition for writ of mandamus. For the reasons
stated below, we deny the motion.
               Stodghill is serving a sentence of four to eight years for, inter alia,
aggravated indecent assault of a twelve-year old girl.                  He avers, and it is
undisputed, that his minimum sentence expired in February of 2014. Nonetheless,
the Board has advised him that he is ineligible for parole review because he has not
participated in the mandatory sex offender treatment required by 42 Pa. C.S. §
9718.1, which provides, in pertinent part:

   1
       Stodghill has captioned his motion a “Motion for Disposition.”
                     (a) General rule.–A person, including an
               offender designated as a “sexually violent predator” as
               defined in section 9799.12 (relating to definitions), shall
               attend and participate in a Department of Corrections
               program of counseling or therapy designed for
               incarcerated sex offenders if the person is incarcerated in
               a State institution for any of the following provisions
               under 18 Pa.C.S. (relating to crimes and offenses):

                          (1) Any of the offenses enumerated in Chapter
               31 (relating to sexual offenses) if the offense involved a
               minor under 18 years of age.[2]

                      ....

                       (b) Eligibility for parole.—For an offender
               required to participate in the program under subsection
               (a), all of the following apply:

                         (1) The offender shall not be eligible for
               parole unless the offender has:

                          (i) served           the     minimum        term      of
               imprisonment;

                            (ii) participated in the program under
               subsection (a) . . . . [Footnote added].
               In his petition for review, Stodghill admits that the above-quoted
provision applies to him. He asserts, however, that he did attend and participate in
such a program and that the Board cannot refuse to consider him for parole on the
ground that he did not complete the program. He argues that the statute requires
only participation, not completion. The Board counters that Stodghill’s level of
participation did not satisfy the statutory standard.3

    2
      Aggravated indecent assault is one of the offenses enumerated in Chapter 31 of Title 18.
    3
      Although the Board does not assert that full completion is always necessary, we note that
in other contexts this court has repeatedly validated the denial of parole for failure to complete
(Footnote continued on next page…)


                                                2
              When ruling on a motion for judgment on the pleadings in our original
jurisdiction, we may consider only the pleadings themselves and any documents
properly attached thereto. Dep’t of Pub. Welfare v. Joyce, 571 A.2d 536 (Pa.
Cmwlth. 1990). We may grant a motion for judgment on the pleadings only where
there is no genuine issue of fact and the moving party is entitled to judgment as a
matter of law. Casner v. Am. Fed. of State, County & Mun. Employees, 658 A.2d
865, 869 (Pa. Cmwlth. 1995). Further, a proceeding in mandamus is an
extraordinary remedy, designed to compel the performance of a ministerial act or
mandatory duty. Kelly v. Pa. Bd. of Prob. & Parole, 686 A.2d 883, 884 (Pa.
Cmwlth. 1996). Mandamus relief is available only where there exists a clear legal
right in the petitioner, a corresponding duty in the respondent, and want of any
other adequate and appropriate remedy. Id.
              The salient facts are largely undisputed here. Stodghill attended some
sessions of the mandatory program, but did not complete it. Attached to his
petition for review is a document titled “Pennsylvania Department of Corrections
Correctional Plan—Evaluation.” That document states that Stodghill attended 15
out of 120 sessions of the Sex Offender Program, that his participation was
unsatisfactory, that he failed to complete required assignments, and that he was
often disruptive or slept in group sessions.4 In response to Stodghill’s claim that

_____________________________
(continued…)
rehabilitative programs. See, e.g., Wilson v. Pa. Bd. of Prob.& Parole, 942 A.2d 270, 273-74 (Pa.
Cmwlth. 2008) (observing that, “requiring an inmate to complete institutional programming that
requires the inmate to admit guilt is not conscience shocking ….”); Weaver v. Pa. Bd. of Prob. &
Parole, 688 A.2d 766, 779 (Pa. Cmwlth. 1997) (stating that, “failure to successfully complete [a
treatment] program is a valid reason for denying parole ....”).
     4
       While Stodghill disputes some of the facts in the report, it demonstrates beyond question
that the pleadings do not establish a clear right to relief.



                                               3
the plain language of the statute requires only some participation, the Board argues
that “participation” of the sort reflected in the evaluation report does not satisfy the
mandatory condition for parole eligibility. We agree with the Board. As we noted
in Evans v. Pennsylvania Board of Probation & Parole, 820 A.2d 904 (Pa.
Cmwlth. 2003):

             [T]he stated, actual purpose of [Section 9718.1] is the
             protection of the public. As set forth in the Act, the
             General Assembly declared:

                     It is the intent of the General Assembly to
                     protect our most vulnerable and precious
                     citizens, the Commonwealth’s children,
                     from the ravages of sexual abuse. Because
                     sexual crimes committed against children
                     are among the most heinous imaginable,
                     the General Assembly declares it to be in
                     the public interest to enact this act.

             H.B. 47, 184th Gen. Assem., 1999 Reg. Sess. (Pa. 2000).
Id. at 912. Allowing any level of attendance, however minimal or unsatisfactory,
to meet the requirements of Section 9718.1 would entirely frustrate this announced
legislative purpose. Only where the rehabilitative goal of the program has been
achieved can there be any hope of preventing future abuse of children, and absent
successful participation in the plan of therapy, there can be little prospect of
rehabilitation.
             Accordingly, because he has failed to show a clear right to relief as a
matter of law, Stodghill’s motion for judgment on the pleadings is denied.



                                        _____________________________________
                                        BONNIE BRIGANCE LEADBETTER,
                                        Judge


                                           4
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


David Manning Stodghill,               :
                       Petitioner      :
                                       :
                 v.                    :     No. 1 M.D. 2014
                                       :
Pennsylvania Board of Probation        :
and Parole,                            :
                        Respondent     :


                                    ORDER


           AND NOW, this 27th day of August, 2015, Petitioner’s Motion for
Disposition is DENIED.
           Further, Petitioner’s Petition for Accelerated Disposition is DENIED
as moot.




                                     _____________________________________
                                     BONNIE BRIGANCE LEADBETTER,
                                     Judge
