         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mohammad Sohail Saleem,                       :
                                              :
                     Petitioner               :
                                              :
              v.                              :    No. 14 M.D. 2017
                                              :    Submitted: November 22, 2017
PA Board of Probation and Parole and          :
Department of Corrections,                    :
                                              :
                     Respondents              :

BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                        FILED: January 10, 2018

              On January 9, 2017, Mohammad Sohail Saleem (Petitioner), pro se,
filed a Petition for Writ of Mandamus with this Court seeking to have this Court
order the Pennsylvania Board of Probation and Parole (Board) to schedule another
parole hearing and immediately parole Petitioner so he may be deported to Pakistan.1
Subsequent to the Petition for Writ of Mandamus, both the Board and Petitioner filed
Applications for Summary Relief, which are now before this Court for review. For
the following reasons, we grant the Board’s Application for Summary Relief




1
  In his Reply Brief, Petitioner requests that due to changed circumstances he be immediately
paroled and remain in the United States rather than be deported to Pakistan. Petitioner has not
amended his Petition for Writ of Mandamus to reflect this new request for relief.
pursuant to Pennsylvania Rule of Appellate Procedure 1532 and deny Petitioner’s
Application for Summary Relief.2
               The following facts are not in dispute. On June 3, 2015, Petitioner pled
guilty to three counts of indecent assault and the remainder of the charges against
him were nolle prossed. Petitioner was found to be a sexually violent predator and
sentenced to a 1 year, 9 month to 10 year aggregate sentence with a minimum parole
date of December 2, 2016 and a maximum date of March 2, 2025. As a part of his
plea deal, Petitioner expected to be immediately deported to Pakistan; however, the
United States Department of Immigration and Customs Enforcement did not
immediately deport Petitioner. Petitioner reached his minimum parole date and, on
November 29, 2016, the Board issued an order denying Petitioner parole, which
stated:


               FOLLOWING AN INTERVIEW WITH YOU AND A
               REVIEW OF YOUR FILE, AND HAVING
               CONSIDERED    ALL   MATTERS      REQUIRED
               PURSUANT TO THE BOARD OF PROBATION AND
               PAROLE, IN THE EXERCISE OF ITS DISCRETION,
               HAS DETERMINED AT THIS TIME THAT: YOU ARE
               DENIED PAROLE/REPAROLE. THE REASONS FOR
               THE BOARD'S DECISION INCLUDE THE
               FOLLOWING:

               YOUR UNACCEPTABLE COMPLIANCE WITH
               PRESCRIBED INSTITUTIONAL PROGRAMS. YOUR
               NEED TO PARTICIPATE IN AND COMPLETE
               ADDITIONAL INSTITUTIONAL PROGRAMS.


2
  In ruling on an application for summary relief, the court must view the evidence of record in the
light most favorable to the non-moving party and enter judgment only if there are no genuine issues
as to any material facts and the right to judgment is clear as a matter of law. McSpadden v.
Department of Corrections, 886 A.2d 321, 325 (Pa. Cmwlth. 2005).
                                                2
             YOUR    RISK AND   NEEDS  ASSESSMENT
             INDICATING YOUR LEVEL OF RISK TO THE
             COMMUNITY.

             THE NEGATIVE RECOMMENDATION MADE BY
             THE DEPARTMENT OF CORRECTIONS, REPORTS,
             EVALUATIONS AND ASSESSMENTS/LEVEL OF
             RISK INDICATES YOUR RISK TO THE
             COMMUNITY.

             YOUR FAILURE TO DEMONSTRATE MOTIVATION
             FOR SUCCESS.

             YOUR MINIMIZATION/DENIAL OF THE NATURE
             AND CIRCUMSTANCES OF THE OFFENSE(S)
             COMMITTED.

             YOUR REFUSAL TO ACCEPT RESPONSIBILITY
             FOR THE OFFENSE(S) COMMITTED.

             YOUR LACK OF REMORSE FOR THE OFFENSE(S)
             COMMITTED.

             YOUR NEGATIVE INTEREST IN PAROLE.

(Board’s New Matter, Exhibit E – Board’s Order (capitalization in the original.)
             Mandamus is an extraordinary writ designed to compel the
performance of a ministerial act or mandatory duty where (1) there exists no other
adequate and appropriate remedy, (2) there is a clear legal right in the plaintiff, and
(3) there is a corresponding duty in the defendant.         McCray v. Pennsylvania
Department of Corrections, 872 A.2d 1127, 1131 (Pa. 2005).              Mandamus is
available to enforce rights already established beyond peradventure; mandamus
cannot be used to establish legal rights. Allen v. Department of Corrections, 103
A.3d 365, 369-70 (Pa. Cmwlth. 2014).

                                          3
             For example, mandamus is an appropriate remedy where a sentencing
order clearly applies credit to an inmate’s sentence but the Board fails to include that
credit in its computation of the inmate’s maximum and minimum date. Black v.
Department of Corrections, 889 A.2d 672, 677 (Pa. Cmwlth. 2005). Conversely,
mandamus is not available to require the Board to re-compute an inmate’s maximum
and minimum date where the sentencing order does not clearly award the inmate
credit or does not specify the credit at issue. Id. The critical difference between
these two circumstances is the Board’s discretion; where the Board has discretion,
as it does if a sentencing order awarding credit is ambiguous, mandamus will not lie.
Mandamus shall


             not be used to direct the Board to exercise its judgment or
             discretion in a particular way or direct the retraction or
             reversal of an action already taken. Petitioner may not use
             mandamus to direct the Board re-parole or release
             him….In an action in mandamus involving an
             administrative agency’s exercise of discretion, we may
             only direct the agency to perform the discretionary act.


Nickson v. Board of Probation and Parole, 880 A.2d 21, 23-4 (Pa. Cmwlth. 2005)
(internal citations omitted).
             In the instant matter, there is no question that the Board performed the
discretionary act by holding a hearing and issuing a decision denying Petitioner’s
parole. In addition, the Board fulfilled its statutory duty to provide a brief statement
of the reasons for denying Petitioner parole. See 61 Pa. C.S. § 6139(a)(5). Petitioner
does not seek to compel the Board to take action on his request for parole but to take
a particular action. He contends that the Board’s decision to deny him parole was
arbitrary and capricious. For this reason, mandamus does not lie. Coady v. Vaughn,

                                           4
770 A.2d 287, 289 (Pa. 2001) (the General Assembly has conferred upon the Board
the sole discretion to determine whether an inmate may be paroled and “[m]andamus
will not lie to compel a purely discretionary act”); Rogers v. Board of Probation and
Parole, 724 A.2d 319, 323 & n.5 (Pa. 1999) (mandamus is available to compel the
Board to conduct a hearing or apply the correct law but there is no right to appellate
review of the Board’s exercise of discretion to deny parole); Weaver v. Board of
Probation and Parole, 688 A.2d 766, 776 (Pa. Cmwlth. 1997) (en banc)
(“Mandamus cannot be used to say that an agency considered improper factors, that
its findings of fact were wrong, or that the reasons set forth in its decision are a
pretense”).
              Petitioner also argues that by denying him parole, in part, because he
has failed to take part in a sex offender treatment program during confinement, the
Board has violated his right to due process, his right against self-incrimination, and
his right to equal protection. In advancing this argument, Petitioner relies upon the
dissenting opinion in Weaver; however, the majority opinion rejected the argument
put forth by Petitioner and the majority opinion is the controlling precedent.
              In Weaver, this Court held that during a voluntary parole hearing, an
inmate is free to assert his Fifth Amendment right under the United States
Constitution but that the assertion of the inmate’s right against self-incrimination
does not shield him from any adverse consequences that may arise from the refusal
to admit to the crime for which he was convicted. 688 A.2d at 778-79. In Sontag v.
Ward, 789 A.2d 778 (Pa. Cmwlth. 2001), this Court held that the Board conditioning
parole upon a sex offender’s admission of guilt and successful completion of a
treatment program did not violate the equal protection clause of the United States
Constitution because it treated all sex offenders alike and was rationally related to


                                          5
the purpose of rehabilitating offenders so as to protect the public. Id. at 781. The
majority in Weaver also observed that a petitioner has no absolute right to parole and
that neither the United States constitution nor the Pennsylvania constitution protect
a liberty interest in the expectation of being released from confinement prior to the
expiration of the maximum term of the imposed sentence. 688 A.2d at 769-70.
Rather, parole is “a favor granted upon a prisoner by the state as a matter of grace
and mercy shown by the Commonwealth to a convict who has demonstrated a
probability of his ability to function as a law abiding citizen in society.” Id. at 770.
The Board determined that Petitioner did not demonstrate this ability and the Board
did not violate Petitioner’s constitutional rights in the process.
             Finally, the Petitioner argues that he is innocent and that he is being
illegally incarcerated because he was induced to plead guilty upon the promise of
immediate deportation and that the prosecutor failed to disclose evidence favorable
to him as required by Brady v. Maryland, 373 U.S. 83 (1963).
             This Court held in Staton v. Board of Probation and Parole, 171 A.3d
363 (Pa. Cmwlth. 2017), that the Board is not bound by a plea agreement reached
between the Commonwealth and a defendant:


             An offer from the Commonwealth seeking a defendant’s
             plea of guilty can form a contract as in any other
             circumstance, whether accepted through a written plea
             agreement or by the defendant's performance in entering
             the guilty plea. Once the contract is formed, its terms must
             be fulfilled. Although it is unclear in this matter whether
             [petitioner’s] plea formed a contract through a written
             mechanism or by his acceptance of the Commonwealth’s
             offer through entry of a guilty plea, we do not doubt that
             such a contract exists. However….[t]he parties to such a
             contract are the defendant and the Commonwealth, not the

                                           6
             Board. Any suggestion that the Board has a contractual
             duty to [petitioner] is thus misplaced.


Id. at 366-67. In short, we rejected the argument that Petition is attempting to make
here; the Board’s decision regarding parole is not bound by the plea agreement
Petitioner may or may not have made with the Commonwealth.
             Furthermore, a mandamus action challenging the Board’s decision not
to parole him is not the proper vehicle for Petitioner to challenge the actions his
defense attorney and the prosecutor may or may not have taken in the proceedings
giving rise to his underlying conviction. These types of claims, whether they be
based upon alleged Brady violations or ineffective assistance of counsel claims due
to erroneous advice regarding deportation, see, e.g. Padilla v. Kentucky, 559 U.S.
356 (2010), are properly raised via a petition under the Post-Conviction Relief Act,
Act of May 13, 1982 P.L. 417, as amended, 42 Pa. C.S. §§ 9541-9546. Mandamus
may not be used as a vehicle to collaterally attack Petitioner’s criminal conviction.
Section 2 of the Post-Conviction Relief Act, 42 Pa. C.S. § 9542 (“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”); Guarrasi v. Scott, 25 A.3d 364, 402 (Pa. Cmwlth. 2011); George v.
Beard, 824 A.2d 393, 395 (Pa. Cmwlth. 2003).
             The Board’s right to a judgment in its favor is clear; accordingly, the
Board’s application for summary relief is granted and Petitioner’s application is
denied.

                                     __________ ___________________________
                                     JAMES GARDNER COLINS, Senior Judge


                                         7
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mohammad Sohail Saleem,                :
                                       :
                  Petitioner           :
                                       :
            v.                         :   No. 14 M.D. 2017
                                       :
PA Board of Probation and Parole and   :
Department of Corrections,             :
                                       :
                  Respondents          :



                                  ORDER


            AND NOW, this 10th day of January, 2018, the Pennsylvania Board of
Probation and Parole’s Application for Summary Relief is GRANTED and
Mohammad Sohail Saleem’s Application for Summary Relief is DENIED.



                                  __________ ___________________________
                                  JAMES GARDNER COLINS, Senior Judge
