          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Craig Saunders,                            :
                                           : No. 524 M.D. 2015
                           Petitioner      : Submitted: April 8, 2016
                                           :
                    v.                     :
                                           :
Commonwealth of Pennsylvania               :
Department of Corrections,                 :
State Correctional Institution             :
at Rockview,                               :
                                           :
                           Respondents     :


BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                              FILED: June 30, 2016



             Presently before the Court is the Department of Corrections’ and the
State Correctional Institution at Rockview’s (SCI-Rockview) (collectively,
Department) preliminary objection to the petition for review filed in this Court’s
original jurisdiction by Craig Saunders, an inmate at SCI-Rockview, seeking
declaratory and injunctive relief. In his petition, Saunders seeks a declaration that
the Department has no authority to compel him to participate in the Sexual
Offender Treatment Program (SOTP)1 and requests that the Department be

      1
        Section 9718.1(a) of the Sentencing Code provides that an inmate convicted of
enumerated sexual crimes against minors, “including an offender designated as a ‘sexually
(Footnote continued on next page…)
precluded from requiring him to participate in the SOTP or punishing him for
failing to do so.2 We sustain the preliminary objection and dismiss the petition for
review with prejudice.

(continued…)

violent predator’ as defined in section 9799.12 (relating to definitions), shall attend and
participate in a [Department] program of counseling or therapy designed for incarcerated sex
offenders . . . .” 42 Pa. C.S. §9718.1(a). Section 9718.1(b) provides that an inmate required to
participate in such a program “shall not be eligible for parole unless” he or she has served the
minimum term of imprisonment; participated in the program; and agreed to comply with any
special parole conditions “imposed for therapy or counseling for sex offenders, including
sexually violent predators.” 42 Pa. C.S. §9718.1(b). Under Section 9718.1(c), the Department
“shall develop and provide the program of counseling or therapy for offenders,” and “shall have
the sole discretion with respect to counseling or therapy program contents and administration,
including the scheduling of an offender’s attendance and participation.” 42 Pa. C.S. §9718.1(c).
Finally, Section 9718.1(d) states that “[n]otwithstanding any other provision of law to the
contrary, this section shall not be construed to confer any legal right upon any individual,
including an individual required to participate in the department’s programs of counseling or
therapy for incarcerated offenders, seeking to . . . participate and attend the program provided in
subsection (a) at a time of the individual’s own choosing [or] . . . file any other cause of action in
any court regarding the program provided in subsection (a).” 42 Pa. C.S. §9718.1(d)(1), (4).

       2
          Although Saunders has styled the instant matter as a declaratory and injunctive action,
in its preliminary objections the Department asserts that he is actually seeking mandamus relief.
In a similar case, we have explained:

                       In support of its demurrer, the Department asserts that the
               petition should be treated as an action in mandamus. The petition
               itself does not specifically denote the legal theory under which it is
               brought. [The inmate] argues in his brief that he has not filed an
               action in mandamus but, rather, a declaratory and injunctive action.
               An examination of the relief requested establishes the nature of the
               cause of action and, thus, the standards to be applied to a demurrer.

                       A party seeking an injunction must establish that (1) the
               right to relief is clear, (2) there is an urgent necessity to avoid an
               injury which cannot be compensated for by damages, and (3) the
               greater injury will result from refusing rather than granting the
               relief requested. Similarly, mandamus is an extraordinary writ,
(Footnote continued on next page…)
                                                  2
             Saunders was convicted in the Philadelphia County Court of Common
Pleas (trial court) of 5 counts of robbery; 5 counts of kidnapping; burglary;
violation of the Uniform Firearms Act; criminal conspiracy; and rape as an
accomplice.3 In March 2004, the trial court sentenced Saunders to an aggregate

(continued…)

             designed to compel a public official’s performance of a mandatory
             duty, and may issue only where (1) “the petitioner has a clear legal
             right to enforce the performance of an act, (2) the defendant has a
             corresponding duty to perform the act and (3) the petitioner has no
             other adequate and appropriate remedy.” In short, whether [the
             inmate] is seeking a writ of mandamus or an injunction, his
             threshold burden is to establish a clear legal right to relief.
             Because [the inmate] seeks to compel action by prison officials
             acting in their official capacities, we accept the Department’s
             premise that the petition seeks the issuance of a writ of mandamus.
             [The result, however, is the same even if the petition were to be
             treated as a suit in equity].

Garber v. Pennsylvania Department of Corrections, 851 A.2d 222, 225 (Pa. Cmwlth. 2004)
(citations and footnotes omitted and emphasis in original).

      3
          The Pennsylvania Superior Court has described the facts underlying Saunders’
convictions:

             The testimony at Saunders’s trial established that he and co-
             defendant Selwyn Brown approached fifteen-year-old Latosha
             Thomas outside her home in Philadelphia, asking if her mother,
             Stephanie Miller, was at home. When Latosha went to the front
             door to summon her mother, co-defendant Brown held a gun to the
             back of her head and forced her into the residence while Saunders,
             also brandishing a gun, checked the rooms of the home’s first floor
             to see who was present. As Brown corralled Latosha and Ms.
             Miller into a third-floor bedroom of the house, Saunders entered
             the second floor bedroom of fourteen-year-old Talieda Thomas,
             put a gun to her back, and forced her up the stairs as well. As the
             two mounted the stairs, they encountered Ms. Miller’s youngest
             daughter, eight-year-old Shannon Miller, running to escape the
(Footnote continued on next page…)
                                              3
(continued…)

           scene upstairs. Saunders seized Shannon as well and forced her,
           along with Talieda, into the same third-floor bedroom where
           Brown had confined their mother and older sister. Shortly
           thereafter, Latosha’s boyfriend, Shampsuddin Hassan, arrived at
           the Miller home, and Brown, answering the door with Latosha at
           gunpoint, forced him into the house and confined him with Ms.
           Miller and her daughters.

                   While Brown held Ms. Miller, her daughters and Hassan at
           gunpoint, Saunders ransacked the house looking for something to
           no avail. Ultimately, Brown demanded $20,000 of Ms. Miller and,
           when she could not produce it, forced her at gunpoint into a second
           bedroom, leaving Saunders to guard the children. While in the
           other room with Ms. Miller, Brown forced her to remove her
           clothing and then, still holding his gun, raped her. After Brown
           returned her to the bedroom with her children, battered and shaken,
           Ms. Miller asked if he was looking for Andre Woodard, her former
           paramour. Miller then offered to show the two where Woodard
           lived. After summoning a third co-conspirator, Harlan Smith, by
           telephone and leaving him to guard the children, Brown took
           Miller to her car and, with Saunders following, went to Woodard’s
           home. Continuing to hold Ms. Miller at gunpoint as the two
           walked toward Woodard’s house, Brown committed a second
           home invasion as he forced his way past Quiana Scott, who
           answered the door. While a second gunman held Ms. Miller,
           Brown forced Scott into a back room from which he returned with
           a small tin and ordered Ms. Miller to drive him back to her home.
           After being released and reunited with her children, Ms. Miller and
           her family went to a hotel for the night. The following day, Ms.
           Miller submitted to a rape kit which recovered semen, DNA from
           which matched that of Selwyn Brown. Over the ensuing weeks,
           the Philadelphia Police Department worked with Ms. Miller,
           Latosha, and Talieda, developing composite sketches of Saunders
           and Smith. In addition, Ms. Miller and Talieda selected Brown’s
           image from a photo array and police arrested him on a warrant.
           Subsequent review of the visitation logs at SCI-Graterford, where
           Brown was held pending trial, revealed that Saunders visited him
           there five times in six weeks. Ultimately, Ms. Miller and Latosha
(Footnote continued on next page…)
                                           4
term of 48½ to 97 years imprisonment.4 The Superior Court affirmed the judgment
of sentence on direct appeal and Saunders did not seek further review by the
Supreme Court. Commonwealth v. Saunders, (Pa. Super., No. 1301 EDA 2010,
filed August 9, 2011), slip op. at 5; Commonwealth v. Saunders, 946 A.2d 776, 778
n.2 (Pa. Super. 2008).5




(continued…)

               saw Saunders in a west Philadelphia shoe store and identified him
               to a nearby police officer who took him into custody on a warrant.

Commonwealth v. Saunders, (Pa. Super., No. 1301 EDA 2010, filed August 9, 2011), slip op. at
2-4. With respect to Saunders’ rape conviction, the Pennsylvania Supreme Court has explained
that “[i]t is well-established . . . that a defendant, who was not a principal actor in committing the
crime, may nevertheless be liable for the crime if he was an accomplice of a principal actor. See
18 Pa .C.S. §306; see also Commonwealth v. Bradley, [392 A.2d 688, 690 (Pa. 1978), cert.
denied, 440 U.S. 938 (1979)] (the actor and his accomplice share equal responsibility for
commission of a criminal act).” Commonwealth v. Murphy, 844 A.2d 1228, 1234 (Pa. 2004).

       4
          Following a separate trial, the trial court sentenced Saunders to a consecutive 3½- to 7-
year term based on his conviction of conspiracy to commit escape for his participation in a plan
to assist Brown in an armed escape from custody. See Commonwealth v. Saunders, 946 A.2d
776, 779 (Pa. Super. 2008) (“During the visits to the prison and the numerous phone calls,
Brown and [Saunders] crafted the plan to free Brown from custody at gunpoint while he was
leaving Family Court on the day of Brown’s preliminary hearing in the [rape] case.”) (footnote
omitted).

       5
          Saunders has filed multiple lawsuits in both state and federal courts collaterally
attacking his convictions. See, e.g., Commonwealth v. Saunders, (Pa. Super., No. 418 EDA
2014, filed August 5, 2015); Saunders v. Philadelphia District Attorney’s Office, (3rd Cir., No.
13-1951, filed October 21, 2013); Saunders v. Bright, (3rd Cir., No. 08-1763, filed June 3, 2008);
Saunders v. Lamas, (E.D. Pa., No. 12-1731, filed December 23, 2015); Saunders v. Beard, (E.D.
Pa., No. 05-CV-2740, filed October 26, 2005).



                                                  5
               In October 2015, Saunders filed the instant petition alleging that a
Department counselor added the SOTP to his prescribed programming6 in March


       6
          Section 102 of the Prisons and Parole Code defines “prescribed programming” as “[a]n
individualized treatment plan [(ITP)] that is part of the correctional plan jointly developed by the
department and the board [of probation and parole] following a diagnostic evaluation and risk
and needs assessment that includes a structured set of evidence-based treatment curriculums
designed to reduce the risk of re-offense by an offender.” 61 Pa. C.S. §102. In this regard, we
may take judicial notice of the Department’s Policies and assessment tools pursuant to Pa. R.E.
201 because “a court may take judicial notice of public documents in ruling on a preliminary
objection in the nature of a demurrer.” Solomon v. United States Healthcare Systems of
Pennsylvania, Inc., 797 A.2d 346, 352 (Pa. Super.), appeal denied, 808 A.2d 573 (Pa. 2002)
(citation omitted). See also Hill v. Department of Corrections, 64 A.3d 1159, 1165 (Pa. Cmwlth.
2013) (taking judicial notice of the Department’s policies and handbooks found on its website).

        Section 11 of the Department’s Access to Mental Health Care Procedures Manual states,
in relevant part:

               a.     Permanent facilities are responsible for identifying,
               tracking, and assessing all sexual offenders received. All facilities
               shall use the automated Unit Management System for
               recommending [SOTP] and maintaining waiting lists. A trained
               [SOTP] provider shall conduct specialized assessments of a sexual
               offender within two months of his/her arrival at the facility, and,
               subsequent to the assessment, ensure the appropriate program is
               placed on the offender’s Individual Treatment Plan (ITP).

Department Policy 13.8.1, Section 11(B)(2)(a).

        With respect to the assessment protocol that the Department uses in determining inmate
participation in the SOTP, Section 11 also provides, in pertinent part:

               b.      For every male sexual offender, assessment shall include,
               but not be limited to, a case file review, and completion of the
               Static-99[.] Unless the convicted sexual offender refuses, an
               individual interview shall also be part of the assessment process,
               and during the interview the DC-577, Adult Sex Offender Data
               Collection Instrument . . . shall be completed. Note: Much of
               the information required for completion of the DC-577 can be
(Footnote continued on next page…)
                                                 6
(continued…)

               gleaned through the case file review, but can be verified and/or
               clarified in the individual interview.
               c.      Every inmate refusal to be interviewed for purposes of risk
               assessment shall be documented using the Inmate Cumulative
               Adjustment Record (ICAR), and this documentation shall be sent
               to the inmate’s Corrections Counselor for maintenance in the
               ICAR, with a copy maintained in the offender’s sex offender-
               specific record. Upon refusal, the inmate shall be counseled as to
               the possible consequences of failure to participate in treatment,
               including the possibility of being denied parole and of increasing
               his/her chances of re-offending upon return to the community. In
               cases where the inmate is appealing his/her case based upon claim
               of innocence and/or is in total denial of the crimes(s) and refusing
               treatment, this shall also be documented using the ICAR.

                                              ***

               h.      The results of the sex offender assessment shall be
               summarized using the DC-578, Sex Offender Program
               Evaluation form, which provides two levels of risk (Low,
               Moderate/High). A male offender assessed to be low risk shall be
               prescribed Low Intensity SOTP, while an offender assessed to be
               moderate or high risk shall be prescribed Moderate/High Intensity
               SOTP. Assessment results (including copies of the completed
               Static-99, DC-577 and the DC-578, along with copies of the
               inmate’s Pre-Sentence Investigation (PSI), and any existing police
               reports and/or victim statements shall be the beginning of the sex
               offender-specific record.

Department Policy 13.8.1, Section 11(B)(4)(b), (c), (h) (emphasis in original).

       In turn, the STATIC-99 was developed by R. Karl Hanson, Ph.D., and David Thornton,
Ph.D., “by amalgamating two risk assessment instruments.” Andrew Harris, Amy Phenix, R.
Karl Hanson, and David Thornton, STATIC-99 Coding Rules Revised – 2003 at 3. As described:

               The STATIC-99 utilizes only static (unchangeable) factors that
               have been seen in the literature to correlate with sexual
               reconviction in adult males. The estimates of sexual violent
               recidivism produced by the STATIC-99 can be thought of as a
(Footnote continued on next page…)
                                                7
2010, but that he never consented to or underwent a diagnostic evaluation or
assessment for that placement and that he was not designated as a “sexually violent
predator”7 by the trial court at sentencing. Saunders asserts that he refused to

(continued…)

               baseline of risk for violent and sexual reconviction. From this
               baseline of long-term risk assessment, treatment and supervision
               strategies can be put in place to reduce the risk of sexual
               recidivism.

                                              ***

               The strengths of the STATIC-99 are that it uses risk factors that
               have been empirically shown to be associated with sexual
               recidivism and the STATIC-99 gives explicit rules for combining
               these factors into a total risk score. This instrument provides
               explicit probability estimates of sexual reconviction, is easily
               scored, and has been shown to be robustly predictive across several
               settings using a variety of samples.

               While potentially useful, an interview with the offender is not
               necessary to score the STATIC-99.

Id.

        Finally, the STATIC-99 divides sexual misconduct into two categories. “Category ‘A’
involves most criminal charges that we generally consider ‘sexual offences’ and that involve an
identifiable child or non-consenting adult victim. This category includes all contact offences,
exhibitionism, voyeurism, sex with animals and dead bodies. Category ‘B’ offences include
sexual behavior that is illegal but the parties are consenting or no specific victim is involved.”
Id. at 14. Specifically listed as one of the Category A offenses in the STATIC-99 is Saunders’
conviction for rape as an accomplice: “Rape (includes in concert) (Rape in concert is rape with
one or more co-offenders. The co-offender can actually perpetrate a sex crime or be involved to
hold the victim down).” Id. at 15.

       7
          The Act of October 24, 1995, P.L. 1079, now known as Megan’s Law I, required
designated sexual offenders to register with the Pennsylvania State Police (PSP) and mandated
the release of certain information to the public. Megan’s Law II was enacted in May 2000, after
Megan’s Law I was held to be unconstitutional in Commonwealth v. Williams, 733 A.2d 593 (Pa.
(Footnote continued on next page…)
                                                8
participate in the SOTP until January 2015, at which time he told his counselor that
he would participate once all avenues for seeking relief from his convictions were
exhausted. Saunders states that the Department referred him to Department Policy
13.8.1, the Access to Mental Health Care Procedures Manual, in response to his



(continued…)

1999), cert. denied, 528 U.S. 1077 (2000). Some portions of Megan’s Law II were held to be
unconstitutional in Commonwealth v. Gomer Williams, 832 A.2d 962 (Pa. 2003), and the General
Assembly enacted Megan’s Law III in November 2004. Megan’s Law III was also struck down
by our Supreme Court for violating the single subject rule of Article 3, Section 3 of the
Pennsylvania Constitution. Commonwealth v. Neiman, 84 A.3d 603, 616 (Pa. 2013).

        The United States Congress expanded the public notification requirements of state sexual
offender registries in the Adam Walsh Child Protection and Safety Act of 2006, 42 U.S.C.
§§16901-16945, and the Pennsylvania General Assembly enacted the Sexual Offender
Registration and Notification Act (SORNA) with the stated purpose of “bring[ing] the
Commonwealth into substantial compliance with the Adam Walsh Child Protection and Safety
Act of 2006.” 42 Pa. C.S. §9799.10(1). SORNA went into effect in December 2012, and
established a three-tier classification system for sexual offenders. Section 9799.14 of SORNA,
42 Pa. C.S. §9799.14. Section 9799.14(d)(2) of SORNA designates Saunders’ rape conviction as
a Tier III sexual offense for registration and reporting purposes and requires registration as a
sexual offender for life. 42 Pa. C.S. §§9799.14(d)(2), 9799.15(a)(3).

        Finally, Section 9799.12 of SORNA defines “sexually violent predator,” in relevant part,
as “an individual convicted of an offense specified in . . . section 9799.14(d)[(2)] . . . who, on or
after the effective date of this subchapter, is determined to be a sexually violent predator under
section 9799.24 (relating to assessments due to a mental abnormality or personality disorder that
makes the individual likely to engage in predatory sexually violent offenses).” 42 Pa. C.S.
§9799.12. Although the trial court did not order the assessment by the State Sexual Offenders
Assessment Board (SOAB) of whether or not Saunders is a sexually violent predator prior to
sentencing, and there is no claim in this matter relating to SORNA’s reporting requirements,
Section 9799.24(g) states that “[t]he Pennsylvania Board of Probation and Parole may request of
the [SOAB] that an assessment of a sexual offender be conducted and that a report be provided
to the Pennsylvania Board of Probation and Parole prior to considering a sexual offender for
parole.” 42 Pa. C.S. §9799.24(g).



                                                 9
request under the Right-to-Know Law8 for copies of any policy, legal authority, or
other documents containing the nature of the SOTP and its expected remedial
outcomes, and explaining its application to inmates who did not commit one of the
enumerated offenses in Section 9718.1(a) of the Sentencing Code warranting the
designation.
               Saunders alleges that he submitted a grievance to the Facility
Grievance Coordinator in which he asserted: his right to inquire to the nature of
the SOTP in order to consent to psychological treatment; Section 9718.1(a) of the
Sentencing Code does not apply to inmates convicted of rape as an accomplice;
and he should not continue to be penalized for failing to participate in the SOTP if
he agreed to do so once all of his avenues for relief in the courts are exhausted.
The grievance was appealed through all levels of institutional review. Ultimately,
the Secretary’s Office of Inmate Grievances and Appeals issued a Final Appeal
Decision that stated, in relevant part:

               A review of the record was conducted by the Bureau of
               Treatment Services who determined that the current
               recommendation for [the SOTP] is appropriate based on
               [Department] assessments that were triggered by your
               current conviction for rape. This program is just a
               recommendation for you and you have every right to
               refuse programming. This programming does not dictate
               being designated as a Sexually Violent Predator as you
               suggest. While you may be appealing your case to get
               the sex offenses removed, if that does happen the
               [Department] would re-evaluate your need to participate
               in any standardized programs based on any sentence
               status changes.



      8
          Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.


                                               10
Petition for Review Attachment F.9
                 Saunders then filed the instant petition for review in our original
jurisdiction and the Department filed its preliminary objection in the nature of a
demurrer.10 Saunders argues11 that the Department’s requirement that he divulge
information regarding his rape conviction and admit guilt violates his right against
self-incrimination and his reputation rights as guaranteed by the Fifth Amendment
to the United States Constitution12 and Article 1, Sections 113 and 9 of the

       9
         “[C]ourts reviewing preliminary objections may not only consider the facts pled in the
complaint, but also documents or exhibits attached to it.” Lawrence v. Department of
Corrections, 941 A.2d 70, 71 (Pa. Cmwlth. 2007).

       10
          The Department asserts that Saunders fails to state a cognizable claim for relief
because he “lacks a clear right to force the Department to remove a programming
recommendation” and he “lacks a clear legal right to overturn” the Department’s
recommendation for the SOTP because “the Department’s treatment services officials believe
that it would be salutary for [him] to participate in the rehabilitative program.” Preliminary
Objection at ¶¶20, 21. “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. 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.”
Garber, 851 A.2d at 226 n.7 (citation omitted).

       11
            We reorder Saunders’ claims in the interest of clarity.

       12
         The Fifth Amendment provides, in relevant part, that no person “shall be compelled in
any criminal case to be a witness against himself.” U.S. Const. amend. V. As this Court has
explained:

                 It is indisputable that the Fifth Amendment privilege against self-
                 incrimination is applicable to the States via the Fourteenth
                 Amendment, and that it applies to protect an individual not only
                 from being compelled to testify against himself in a criminal
                 prosecution, but also privileges him not to answer official
                 questions in any proceeding, criminal or civil, where the answer
                 might incriminate him in future criminal proceedings. Leftkowitz
                 v. Turley, 414 U.S. 70, 77 [(1973)].
(Footnote continued on next page…)
                                                  11
Pennsylvania Constitution.14 Petition for Review at ¶¶44-46. Saunders also argues
that the Department’s requirement that he participate in the SOTP violates his due
process rights under the Fourteenth Amendment to the United States Constitution15
and Article 1, Section 1 of the Pennsylvania Constitution because: (1) it was
imposed without prior notice or an adequate hearing; (2) it deprives him of a
liberty interest by changing the conditions of his confinement and denigrating his
reputation; and (3) it “impos[es] an ‘atypical and significant hardship on [him] in




(continued…)

City of Philadelphia v. Kenny, 369 A.2d 1343, 1347 (Pa. Cmwlth.), cert. denied, 434 U.S. 923
(1977).

       13
            Article 1, Section 1 states:

                 All men are born equally free and independent, and have certain
                 inherent and indefeasible rights, among which are those of
                 enjoying and defending life and liberty, of acquiring, possessing
                 and protecting property and reputation, and of pursuing their own
                 happiness.

Pa. Const. art. I, §1. “The requirements of Article I, Section 1 of the Pennsylvania Constitution
are not distinguishable from those of the 14th Amendment . . . [and courts] may apply the same
analysis to both claims.” Pennsylvania Game Commission v. Marich, 666 A.2d 253, 255 n.6 (Pa.
1995) (citation omitted).

       14
            Article 1, Section 9 states, in pertinent part, that “[i]n all criminal prosecutions the
accused . . . cannot be compelled to give evidence against himself, nor can he be deprived of his
life, liberty or property, unless by the judgment of his peers or the law of the land.” Pa. Const.
art. I, §9.

       15
         Section 1 of the Fourteenth Amendment provides, in relevant part, “nor shall any State
deprive any person of life, liberty, or property, without due process of law . . . .” U.S. Const.
amend. XIV, §1.


                                                12
relation to the ordinary incidents of prison life[.]’” Petition for Review at ¶¶ 42,
43.16
               In Wilson v. Pennsylvania Board of Probation and Parole, 942 A.2d
270 (Pa. Cmwlth. 2008), an inmate filed a petition for mandamus relief in this
Court against the Pennsylvania Board of Probation and Parole (Board) because he
was denied boot camp and parole based upon a Department evaluation that
required him to complete the SOTP. The inmate was serving a sentence due to a
guilty plea to delivery of a controlled substance, but a related corruption of minors
charge had been withdrawn.17 The inmate alleged that because he had not been
tried for nor convicted of the corruption of minors charge, his required
participation in the SOTP compelled him to admit to a crime for which he was not
convicted in violation of his right against self-incrimination and his due process
rights. The Board and the Department both filed preliminary objections in the
nature of a demurrer.
               In rejecting the inmate’s self-incrimination claim, we explained:

                     The Fifth Amendment right against self-
               incrimination, which prohibits the government from
               compelling a person to give self-incriminating testimony
               in a criminal case, “does not terminate at the jailhouse
               door. But the fact of a valid conviction and the ensuing
        16
           Saunders specifically alleges atypical and significant hardship “including [the] loss of
[the] right to receive non-contact visits, the possibility of being placed in disciplinary custody for
[90] days, ineligibility for parole, and assignment of a ‘high risk’ custody level, which mandates
that [he] change cells every 90 days.” Petition for Review at ¶34.

        17
          As this Court noted, “Although Wilson was not convicted of a sex offense (charges of
corruption of a minor were withdrawn), prison staff explained to Wilson that he was
recommended for sex offender treatment because the ‘official version’ of his crime indicated that
at the time of his arrest he was found naked, wearing a condom, and trying to initiate a sexual
relationship with a 13-year-old girl.” Wilson, 942 A.2d at 273 n.3.


                                                 13
              restrictions on liberty are essential to the Fifth
              Amendment analysis.” McKune v. Lile, 536 U.S. 24, 36
              [(2002)]. In determining whether the Kansas Department
              of Corrections’ sexual abuse treatment program violated
              a convicted sex offender’s constitutional privilege against
              self-incrimination, the United States Supreme Court
              concluded that a prison rehabilitation program that bears
              a rational relation to a legitimate penological objective
              does not violate the privilege against self-incrimination if
              the adverse consequences for not participating are related
              to the program’s objectives and do not constitute an
              atypical and significant hardship in relation to the
              ordinary incidents of prison life. Id. at 37–38[.]

                     Applying these factors to the present facts, we
              must conclude that Wilson fails to state claim. The
              institutional [SOTP] furthers a legitimate penological
              objective of rehabilitating those who have been convicted
              of a sex offense and those whose crimes include a sexual
              component.[18] The adverse consequences identified by
              Wilson, i.e., denial of parole and advancement to boot
              camp, do not constitute an atypical and significant
              hardship in relation to the ordinary incidents of prison
              life. McKune; Weaver v. Pa. Bd. of Prob. and Parole,
              688 A.2d 766 (Pa. Cmwlth. 1997). Wilson’s choice to
              remain silent “is marked less by compulsion than by
              choices the Court has held give no rise to a self-
              incrimination claim.” McKune, 536 U.S. at 41[.] “[T]he
              government need not make the exercise of the Fifth
              Amendment privilege cost free.” Id.



       18
           See also Section 91.2 of the Department’s regulations, 37 Pa. Code §91.2 (“It is the
goal of the Department to operate its institutions and programs to provide protection to the
community, a safe and humane environment and opportunities for rehabilitation for the
inmates.”); Department Policy 7.2.1, Section 4(a)(1) (“Correctional planning begins at the point
of entry into the Department. The majority of inmates will eventually return to the community;
therefore, the initial Correctional Plan and subsequent plans will focus on the inmate’s
reintegration into the community as a law-abiding citizen. . . . The overall mission of every
program is to enhance public safety by providing an inmate the opportunity to become a law-
abiding citizen through structured educational, vocational, and therapeutic experiences.”).


                                              14
Wilson, 942 A.2d at 273 (footnote omitted).19
              In rejecting the inmate’s due process claim, we explained:

                     Wilson’s claim that respondents are violating his
              due process rights by considering information concerning
              the charge of corruption of minors, a crime for which he
              was not tried and convicted, fails for the same reasons.
              An inmate has no liberty interest in being paroled,
              Weaver, in not being labeled a sex offender, or in not
              being required to participate in sex offender
              programming,       Folk v. [Attorney General of the
              Commonwealth of Pennsylvania], 425 F.Supp. 2d 663
              (W.D. Pa. 2005). Moreover, requiring an inmate to
              complete institutional programming that requires the
              inmate to admit guilt is not conscience shocking nor
              intended to injure the inmate in a way that is unjustified
              by a legitimate government interest. Id.
Wilson, 942 A.2d at 273-74 (emphasis added). Accordingly, we sustained the
Board’s and Department’s preliminary objections and dismissed the inmate’s
petition. Id. at 274.
              Likewise, in the instant case, Saunders has failed to state cognizable
constitutional claims in his petition for review. As outlined above, a “sexually
violent predator” designation under Section 9799.12 of the Sentencing Code or a

       19
           See also Weaver, 688 A.2d at 778-79 (“Just as Weaver is free to exercise his First
Amendment right not to participate in the treatment program at all, he is also free to assert his
Fifth Amendment right against self-incrimination and refuse to admit to committing the rape for
which he was convicted in the context of completing a treatment program. He is not, however,
immunized from all adverse consequences, if any, arising from that refusal, such as here, not
being permitted to participate in a program that considers an admission to be a pre-condition to
successful treatment that will lessen the chances that he will rape again Because there is no
constitutional prohibition against using Weaver’s refusal to admit that he committed the rape for
which he was convicted as a basis for denying participation in a treatment program, and because
a failure to successfully complete that program is a valid reason for denying parole, Weaver has
failed to set forth a cause of action in mandamus.”).



                                               15
conviction for one of the enumerated offenses in Section 9718.1 is not a
precondition to the Department’s assessment of whether an inmate needs to
participate in the SOTP as part of the inmate’s ITP.20 Additionally, the assessment

       20
            A plurality of the United States Supreme Court has explained:

                 Sex offenders are a serious threat in this Nation. . . . When
                 convicted sex offenders reenter society, they are much more likely
                 than any other type of offender to be rearrested for a new rape or
                 sexual assault. States thus have a vital interest in rehabilitating
                 convicted sex offenders. Therapists and correctional officers
                 widely agree that clinical rehabilitative programs can enable sex
                 offenders to manage their impulses and in this way reduce
                 recidivism.

McKune, 536 U.S. at 32-33 (citations omitted). Furthermore, “courts must exercise restraint in
supervising the minutiae of prison life” because “[r]unning a prison is an inordinately difficult
undertaking that requires expertise, planning, and the commitment of resources, all of which are
peculiarly within the province of the legislative and executive branches of government.” Id. at
37 (citation omitted). As a result, “[w]e must accord substantial deference to the professional
judgment of prison administrators, who bear a significant responsibility for defining the
legitimate goals of a corrections system and for determining the most appropriate means to
accomplish them.” Overton v. Bazzetta, 539 U.S. 126, 132 (2003). See also Meggett v.
Department of Corrections, 892 A.2d 872, 883 (Pa. Cmwlth. 2006) (“[C]ourts should defer to
the administrative expertise of prison administrators because prison officials are in a better
position than judges ever can be to grasp what is required in the ‘prison domain’ and because the
operation of prison facilities is ‘peculiarly the province of the Legislative and Executive
Branches of our Government, not the Judicial.’”) (citation omitted); Dial v. Vaughn, 733 A.2d 1,
4 (Pa. Cmwlth. 1999) (“The institution in which the sentence is to be served, the objects sought
to be accomplished during this period of control and all the other penological considerations are
not primarily judicial functions.”) (citation omitted).

        The Secretary’s authority to direct Department operations is established by Sections 201,
206, and 506 of the Administrative Code of 1929 (Administrative Code), P.L. 177, 71 P.S. §§61,
66, 186. See also Section 901-B of the Administrative Code, added by the Act of December 30,
1984, P.L. 1299, 71 P.S. §310-1 (transferring to the Department all powers and duties possessed
by the former Bureau of Corrections “related to the administration, management and supervision
of penal and correctional facilities, programs and services.”). To this end, as outlined above,
Department Policy 13.8.1, Section 11(B)(2)(a), requires a trained SOTP provider to conduct
specialized assessments of every sexual offender within two months of his arrival at a
(Footnote continued on next page…)
                                                 16
protocol that the Department uses in determining inmate participation in the SOTP
does not require an inmate’s participation in determining whether or not the SOTP
is an appropriate rehabilitative tool for those inmates convicted of a sex offense
such as Saunders. Although Saunders is not required to participate in the SOTP,


(continued…)

Department facility and, subsequent to the assessments, to ensure that the appropriate program is
placed on the offender’s ITP. Additionally, Section 11(7)(C)(1)(a) provides for “[a] program of
sex offender-specific treatment . . . to every inmate convicted of a sexual offense . . . .” These
provisions are consistent with the Department’s regulation, promulgated pursuant to its authority
under Section 506 of the Administrative Code, “to operate its institutions and programs to
provide protection to the community, a safe and humane environment and opportunities for
rehabilitation for the inmates.” 37 Pa. Code §91.2. See also Department Policy 7.2.1, Section
4(a)(1) (“The majority of inmates will eventually return to the community; therefore, the initial
Correctional Plan and subsequent plans will focus on the inmate’s reintegration into the
community as a law-abiding citizen. . . . The overall mission of every program is to enhance
public safety by providing an inmate the opportunity to become a law-abiding citizen through
structured educational, vocational, and therapeutic experiences.”).

        As explained above, this Court has specifically held that “[t]he institutional sex offender
treatment program furthers a legitimate penological objective of rehabilitating those who have
been convicted of a sex offense and those whose crimes include a sexual component,” and that
the Department can properly determine that the SOTP is an appropriate rehabilitative program
for an inmate even though he has not been convicted of one of the enumerated offenses in
Section 9718.1 of the Sentencing Code and has not been designated as a “sexually violent
predator” under Section 9799.12. Wilson, 942 A.2d at 273 (footnote omitted). See also Carter v.
Muller, 45 F.Supp. 2d 453, 457 (E.D. Pa. 1999) (holding that the Board’s denial of parole due to
an inmate’s refusal to participate in the SOTP was not unconstitutionally arbitrary even though
the inmate had completed serving the sentence on his rape conviction years earlier). Moreover,
as noted above, Saunders’ rape conviction as an accomplice is specifically listed as one of the
Category A offenses in the STATIC-99 protocol that the Department uses in determining
whether the SOTP is an appropriate rehabilitative tool. As a result, and contrary to Saunders’
assertion, the Department’s determination regarding the propriety of the SOTP for an inmate is
not solely limited to those convicted of the offenses enumerated in Section 9718.1 of the
Sentencing Code or those designated as a “sexually violent predator” under Section 9799.12, but
for any sexual offender housed in a Department facility for which the Department deems it
appropriate.


                                               17
the fact that adverse consequences may flow from his non-participation does not
implicate constitutional due process concerns. See McKune; Wilson.21
               Moreover, it is undisputed that Saunders has completed direct review
of his convictions so his self-incrimination rights are not implicated by the SOTP’s
requirements and the speculative consequences of his non-participation are not an
atypical and significant hardship to the normal incidents of his prison life. See
Commonwealth v. Melvin, 103 A.3d 1, 51 (Pa. Super. 2014) (“We are aware of no
federal or Pennsylvania state law . . . that supports the notion that the right against
self-incrimination extends beyond the pendency of a direct appeal.”); Wilson, 942
A.2d at 273 (“The adverse consequences identified by Wilson, i.e., denial of parole
and advancement to boot camp, do not constitute an atypical and significant
hardship in relation to the ordinary incidents of prison life.”) (citation omitted);
Garber, 851 A.2d at 228 (“The Department’s regulations limiting the visitation
rights of sex offenders are rationally related to legitimate, and obvious, penological


       21
          In order for the requirements of procedural and substantive due process to apply, there
must be a deprivation of a property or liberty interest protected by the Fourteenth Amendment.
Davenport v. Reed, 785 A.2d 1058, 1062 (Pa. Cmwlth. 2001). In this regard, Saunders’ reliance
on Renchenski v. Williams, 622 F.3d 315, 326 (3rd Cir. 2010) is misplaced because the court
therein held “that only after a prisoner has been afforded due process may sex offender
conditions be imposed on an inmate who has not been convicted of a sexual offense.” (Emphasis
added). Saunders’ rape conviction distinguishes the Department’s prescribed programming in
the instant matter from that in Davenport. See also Commonwealth v. Wallace, 97 A.3d 310,
320-22 (Pa. 2014) (holding that during incarceration an inmate did not have a due process right
to expunction of fingerprints, photographs, and arrest records not resulting in convictions
because the risk of the erroneous deprivation of his private interest in his reputation is slim; he
had a vast criminal history including convictions that would not be expunged from his criminal
history and the expunction of the other charges would not erase the stigma that follows a
convicted felon; and the Commonwealth had a compelling interest in retaining the records
because they could be used in further penalization should he commit another offense in prison or
for use by the Board in future parole decisions).


                                               18
concerns . . . .”) (citations omitted).22 As a result, Saunders has failed to allege
claims for which the requested relief may be granted.
               Accordingly, the Department’s preliminary objection is sustained and
Saunders’ petition for review is dismissed with prejudice.




                                             MICHAEL H. WOJCIK, Judge




       22
          See also Commonwealth v. Shrawder, 940 A.2d 436, 443 (Pa. Super. 2007) (“[A]
therapeutic polygraph is a proper element in a sex offender treatment program for a convicted
sexual offender and does not violate a probationer’s rights under the Fifth Amendment to the
United States Constitution or under Article One, Section Nine of the Pennsylvania Constitution,
so long as the inquiries made pursuant to it relate to the underlying offense for which an offender
has been sentenced and do not compel him or her to provide information that could be used
against him or her in a subsequent criminal trial.”).


                                               19
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Craig Saunders,                        :
                                       : No. 524 M.D. 2015
                        Petitioner     :
                                       :
                  v.                   :
                                       :
Commonwealth of Pennsylvania           :
Department of Corrections,             :
State Correctional Institution         :
at Rockview,                           :
                                       :
                        Respondents    :



                                     ORDER


            AND NOW, this 30th day of June, 2016, the preliminary objection of
the Commonwealth of Pennsylvania, Department of Corrections and the State
Correctional Institution at Rockview is SUSTAINED and Craig Saunders’ petition
for review is DISMISSED with prejudice.




                                      MICHAEL H. WOJCIK, Judge
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Craig Saunders,                        :
                           Petitioner :
                                       :
             v.                        : No. 524 M.D. 2015
                                       : Submitted: April 8, 2016
Commonwealth of Pennsylvania           :
Department of Corrections,             :
State Correctional Institution         :
at Rockview,                           :
                           Respondents :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

CONCURRING OPINION
BY JUDGE BROBSON                            FILED: June 30, 2016

            I concur with the majority’s decision to sustain the Department’s
preliminary objections and dismiss Saunders’ petition for review with prejudice. I
write separately, however, because I do not believe that the majority opinion
completely addresses Saunders’ statutory construction argument.
            In addition to his constitutional arguments, Saunders also argues that
the Department had no authority to require him to participate in the sex offender
treatment program because the General Assembly did not intend for
Section 9718.1 of the Judicial Code, 42 Pa. C.S. § 9718.1, to apply to an offender
convicted of accomplice to rape of an adult woman. Section 9718.1 provides that
an offender convicted of certain sexual crimes against minors shall not be eligible
for parole unless he attends and participates in a designated treatment program.
While it is true that Saunders has not been convicted of any of the offenses
enumerated in Section 9718.1, there is no evidence that the Department has applied
Section 9718.1 to Saunders; the Department has not required Saunders to
participate in the sex offender treatment program pursuant to Section 9718.1, nor
has Saunders been determined to be ineligible for parole based upon his refusal to
participate in the sex offender treatment program. Rather, it appears that the
Department has made a recommendation that Saunders participate in the sex
offender   treatment    program     pursuant    to     its   general   authority   under
Section 901-B of the Administrative Code of 1929, Act of April 9, 1929, P.L. 177,
added by the Act of December 30, 1984, P.L. 1299, 71 P.S. § 310-1 (“The
Department of Corrections . . . shall have the powers and duties . . . related to the
administration, management and supervision of penal and correctional facilities,
programs and services.”). As a result, Saunders has failed to set forth a claim for
relief based on statutory construction at this time.
             For these additional reasons, I agree with the majority’s result in this
matter.




                                        ______________________________
                                        P. KEVIN BROBSON, Judge




                                        PKB-2
