             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


James A. Wolfe,                                :
                        Petitioner             :
                                               :
                 v.                            :
                                               :
Commonwealth of Pennsylvania,                  :
Pennsylvania Board of                          :
Probation and Parole,                          :   No. 624 M.D. 2019
                  Respondent                   :   Submitted: May 1, 2020


BEFORE:          HONORABLE P. KEVIN BROBSON, Judge
                 HONORABLE MICHAEL H. WOJCIK, Judge
                 HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                            FILED: June 16, 2020


                 Presently before this Court is the Preliminary Objection filed by the
Pennsylvania Board of Probation and Parole1 (Board) in response to pro se petitioner
James A. Wolfe’s (Wolfe) Petition for Writ of Mandamus (Petition). In his Petition,
Wolfe alleges that a change in the Board’s internal procedures to require five votes
instead of two votes to grant parole to inmates convicted of driving under the
influence (D.U.I.)-related homicide by vehicle violates the Ex Post Facto Clause of
the United States Constitution.2 Wolfe also urges this Court to review the Board’s

       1
        Subsequent to the filing of the petition for review, the Pennsylvania Board of Probation
and Parole has been renamed the Pennsylvania Parole Board. See Sections 15, 16, and 16.1 of the
Act of December 18, 2019, P.L. 776, No. 115 (effective February 18, 2020); see also Sections
6101 and 6111(a) of the Prisons and Parole Code, as amended, 61 Pa.C.S. §§ 6101, 6111(a).
       2
           U.S. CONST. art. I, §10.
denial of his parole. For the reasons that follow, we sustain the Preliminary
Objection.
                 Wolfe is currently serving a 45-year, 5-month sentence of incarceration
for homicide by vehicle, D.U.I.-related, with a maximum release date of April 3,
2046. See Petition at 2, ¶¶ 4-5. The Board has denied Wolfe parole six times. See
Petition at 2, ¶ 6.         Following his most recent parole denial, Wolfe filed an
administrative appeal that the Board denied on August 5, 2019, followed by a
Petition for Review In the Nature of a Complaint In Mandamus in this Court, which
the Court dismissed by order dated September 26, 2019 (Dismissal Order). See
Petition at 2, ¶¶ 6-7; see also Wolfe v. Pennsylvania Board of Probation and Parole
(Pa. Cmwlth., No. 1328 C.D. 2019, filed September 26, 2019).
                 On November 13, 2019, Wolfe filed the instant Petition in which he
claims that, at his most recent parole hearing conducted by the Board on May 9,
2019, a Board member informed him of a change to the Board’s internal procedures
whereby the grant of parole for persons convicted of D.U.I.-related homicide by
vehicle now requires the affirmative vote of five Board members, whereas it
previously had required only the affirmative vote of two Board members. See
Petition at 2-4, ¶ 8. Wolfe alleges that this change to internal Board procedure
amounts to a violation of the Ex Post Facto Clause of the Constitution.3 See id.

       3
           Article I, Section 10 of the United States Constitution provides:

                 No State shall enter into any Treaty, Alliance, or Confederation;
                 grant Letters of Marque and Reprisal; coin Money; emit Bills of
                 Credit; make any Thing but gold and silver Coin a Tender in
                 Payment of Debts; pass any Bill of Attainder, ex post facto Law, or
                 Law impairing the Obligation of Contracts, or grant any Title of
                 Nobility.

U.S. CONST. art. I, § 10, cl. 1. Likewise, the Pennsylvania Constitution provides:

                                                  2
              The Board filed its Preliminary Objection on December 10, 2019. On
January 23, 2020, this Court filed an order directing the Preliminary Objection to be
decided on briefs. The parties have each submitted briefs, and the matter is now ripe
for determination.
              Initially, we note that

              [i]n 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. The Court need not accept as true conclusions
              of law, unwarranted inferences from facts, argumentative
              allegations, or expressions of opinion. 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.

              A preliminary objection in the nature of a demurrer admits
              every well-pleaded fact in the complaint and all inferences
              reasonably deducible therefrom. It tests the legal
              sufficiency of the challenged pleadings and will be
              sustained only in cases where the pleader has clearly failed
              to state a claim for which relief can be granted. When
              ruling on a demurrer, a court must confine its analysis to
              the complaint.

Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010).




              No ex post facto law, nor any law impairing the obligation of
              contracts, or making irrevocable any grant of special privileges or
              immunities, shall be passed.

PA. CONST. art. I, § 17. Wolfe only specifically cites to the United States Constitution in the
Petition. See Petition at 3, ¶ 8. Our analysis remains the same under either Constitution.


                                              3
             The Board argues that the Petition should be dismissed because Wolfe’s
ex post facto claim fails to state a claim upon which relief may be granted. See
Board’s Brief at 5-7. We agree.
             As this Court has explained:

             Mandamus is an extraordinary remedy that compels the
             official performance of a ministerial act or a mandatory
             duty. A writ of mandamus may only be issued where there
             is a clear legal right in petitioner, a corresponding duty in
             respondent, and a lack of any other appropriate remedy.

Nickson v. Bd. of Prob. & Parole, 880 A.2d 21, 23 (Pa. Cmwlth. 2005) (internal
citations omitted). “[M]andamus will 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.” Id.
             Further, our Supreme Court has explained that

             [t]he ex post facto prohibition forbids the Congress and the
             States from enacting any law which imposes a punishment
             for an act which was not punishable at the time it was
             committed; or imposes additional punishment to that then
             prescribed. Two critical elements must be present for a
             criminal or penal law to be violative of the ex post facto
             clause: It must be retrospective, that is, it must apply to
             events occurring before its enactment, and it must
             disadvantage the offender affected by it. It is the effect,
             not the form of the law, that determines whether it is ex
             post facto.

Cimaszewski v. Bd. of Prob. & Parole, 868 A.2d 416, 422-23 (Pa. 2005) (internal
citations and quotation marks omitted). The Supreme Court has warned that “[t]he
ex post facto clause[] should not be employed for the micromanagement of an
endless array of legislative adjustments to parole and sentencing procedures.” Id.
                                          4
(internal quotation marks omitted).        Additionally, this Court has expressly
determined that a change of internal Board policy increasing the number of
affirmative votes required to grant a prisoner parole does not violate the Ex Post
Facto Clause because such an increase is merely a procedural change that alters
neither the criteria on which the Board determines parole eligibility nor a prisoner’s
original sentence. Myers v. Ridge, 712 A.2d 791, 798 (Pa. Cmwlth. 1998).
             Here, Wolfe makes the same claim that this Court denied in Myers: that
a change to an internal Board procedure requiring a greater number of affirmative
votes to grant a prisoner parole violated the Ex Post Facto Clause. See Petition at 2-
4, ¶ 8. As in Myers, the change of which Wolfe complains is a purely procedural
one that alters neither the criteria considered by the Board in its parole determination
nor Wolfe’s original sentence. Accordingly, Wolfe’s claim that this change to
internal Board procedure amounts to a violation of the Ex Post Facto Clause of the
Constitution fails to state a claim on which relief may be granted. Myers, 712 A.2d
at 798.
             The remainder of the Petition is Wolfe’s attempt to seek review of the
Board’s May 21, 2019 denial of his requested parole. See Petition at 4-14, ¶¶ 9-11.
This Court previously dismissed this very claim under a separate docket number.
See Dismissal Order. As we explained in the Dismissal Order, “[t]he decision to
grant or deny parole is wholly a matter within the discretion of the Pennsylvania
Board of Probation and Parole and not subject to judicial review.” Id. (citing Rogers
v. Pa. Bd. of Prob. & Parole, 724 A.2d 319 (Pa. 1999); Reider v. Pa. Bd. of Prob. &
Parole, 514 A.2d 967 (Pa. Cmwlth. 1986)); see also Nickson, 880 A.2d at 23–24
(“In an action in mandamus involving an administrative agency’s exercise of
discretion, [the Commonwealth Court] may only direct the agency to perform the


                                           5
discretionary act. [The Commonwealth Court] may not direct the agency to exercise
its judgment or discretion in a particular way, or direct the retraction or reversal of
action already taken.”).
             For these reasons, we sustain the Preliminary Objection and dismiss
Wolfe’s Petition.



                                        __________________________________
                                        CHRISTINE FIZZANO CANNON, Judge




                                          6
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


James A. Wolfe,                      :
                  Petitioner         :
                                     :
           v.                        :
                                     :
Commonwealth of Pennsylvania,        :
Pennsylvania Board of                :
Probation and Parole,                :   No. 624 M.D. 2019
                  Respondent         :


                                ORDER


           AND NOW, this 16th day of June, 2020, the Preliminary Objection of
the Pennsylvania Board of Probation and Parole is SUSTAINED, and James A.
Wolfe’s Petition for Writ of Mandamus is DISMISSED.




                                   __________________________________
                                   CHRISTINE FIZZANO CANNON, Judge
