          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joseph Martin Jennings, II,                    :
                         Petitioner            :
                                               :
                       v.                      :   No. 522 M.D. 2015
                                               :   Submitted: June 17, 2016
Pennsylvania Department of                     :
Corrections, Pennsylvania Board of             :
Probation and Parole,                          :
                         Respondents           :



BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                            FILED: November 30, 2016



      Before this Court in our original jurisdiction are the preliminary objections
(POs) of the Pennsylvania Department of Corrections (Department) and the
Pennsylvania Board of Probation and Parole (Board) (together, Respondents) to
Joseph Martin Jennings, II’s (Jennings) “Amended Complaint,” which we shall
consider as a Petition for Review in the Nature of a Request for a Writ of
Mandamus (Petition).1 Upon review, we sustain the Department’s single PO and
the Board’s second PO, and dismiss the Petition.

      1
          Rule 1502 of the Pennsylvania Rules of Appellate Procedure provides:
                                                                                 (Continued…)
I.     BACKGROUND
       Jennings is currently incarcerated at the State Correctional Institution (SCI)
Benner Township on unknown charges.                   (Petition ¶ 1.)      Jennings was first
incarcerated in 2001 after pleading nolo contendere to Criminal Conspiracy in
violation of Section 903 of the Crimes Code, 18 Pa. C.S. § 903, and
Delivery/Possession with the Intent to Deliver a Controlled Substance in violation
of Section 13(a)(30) of The Controlled Substance, Drug, Device and Cosmetic
Act.2 (Id. ¶ 4, Ex. G.) Jennings was sentenced to 15 to 30 months incarceration
and was assigned Inmate Number EN1581 by the Department. (Id. ¶ 5.) Jennings
was granted parole on January 2, 2002, to serve the balance of his sentence at
liberty. (Id. ¶ 6.) Jennings was arrested while at liberty on parole and charged
with Corruption of Minors in violation of Section 6301 of the Crimes Code, 18 Pa.
C.S. § 6301. (Id. ¶ 10.) The Board took no action in light of the arrest because the
conduct underlying the alleged offense occurred prior to Jennings’ incarceration.
However, while on bail for the above charge, Jennings violated the conditions of
his parole by traveling to California.              (Id. ¶ 7.)    He was extradited to the
Commonwealth on the Board’s warrant and incarcerated at SCI-Rockview on
January 30, 2003, pending Board action on the parole violation. (Id. ¶ 7-8.) On



       The appeal and the original jurisdiction actions of equity, replevin, mandamus and
       quo warranto, the action for a declaratory judgment, and the writs of certiorari and
       prohibition are abolished insofar as they relate to matters within the scope of a
       petition for review under this chapter. The petition for review, insofar as
       applicable under this chapter, shall be the exclusive procedure for judicial review
       of a determination of a government unit.

Pa. R.A.P. 1502 (emphasis added).
       2
         Act of April 14, 1972, P.L. 233, as amended, 35 P.S. § 780-113(a)(30).

                                                2
April 21, 2003, the Board ordered Jennings to be recommitted to a SCI as a
technical parole violator to serve eight months back time. (Id. ¶ 9, Ex. A.)
       While at SCI-Rockview, on March 6, 2003, Jennings was arrested and
charged with various sexual offenses. (Id. ¶ 15.) The Petition does not state when
the offense(s) occurred; however, review of Jennings’ criminal docket number
listed in Jennings’s Petition shows that the event for which he was charged
occurred on April 13, 2002, when Jennings was on parole. See Criminal Docket
No. CP-41-CR-0000342-2003 at 3; Commonwealth v. Jennings, 958 A.2d 536,
537 (Pa. Super. 2008).3
       Jennings was convicted, upon a nolo contendere plea, to Corruption of
Minors on September 26, 2003, and sentenced to 12 months to 5 years, followed
by 1 year of probation. (Petition ¶ 14, Ex. G.) This sentence was to be served
under Jennings’ original Inmate Number, EN1581. (Id. ¶ 17.) Four months later,
on January 26, 2004, Jennings was found guilty of Sexual and Indecent Assault in
violation of Sections 3124.1 and 3126 of the Crimes Code, 18 Pa. C.S. §§ 3124.1,
3126, respectively. (Id. ¶ 16, Ex. G.) Jennings received a sentence of 5 to 10 years
of incarceration for the Sexual Assault conviction and a consecutive sentence of 1
to 2 years of incarceration for the Indecent Assault conviction. (Id. ¶ 18.) These
concurrent sentences were to run consecutive to Jennings’ 1 to 5 years sentence for
Corruption of Minors, combining for an aggregate sentence of 7 to 17 years of
incarceration, and resulting in a minimum date of October 14, 2009, and a
maximum date of October 14, 2019. (Id. ¶ 18, Ex. G.)


       3
          This Court, when assessing preliminary objections in its original jurisdiction, may take
judicial notice of relevant dates in a criminal matter. Doxsey v. Commonwealth, 674 A.2d 1173,
1174 (Pa. Cmwlth. 1996).

                                                3
      Jennings was assigned a new inmate number upon his return to state custody
on January 29, 2004. (Id. ¶ 17.) The new number, FR0460, was associated with
the Sexual Assault and Indecent Assault convictions. (Id.) Then, on February 17,
2005, the Board recommitted Jennings as a convicted parole violator and deemed
him not eligible for parole for 18 months, to run concurrent with the eight month
term resulting from his recommitment as a technical parole violator for traveling to
California.   (Id. ¶ 20.)   At some point after returning to state custody, the
Department developed a plan of programming for Jennings that included several
sexual offender treatment programs. (Id. ¶ 21.) As of January 5, 2006, the
Department recommended that Jennings complete: (1) Alcohol and Other Drug
Education; (2) various sexual offender programs; (3) the Thinking for a Change
program; and (4) violence prevention programming. (Id., Ex. E.)
      On May 22, 2006, the Board denied Jennings parole from his Corruption of
Minors sentence for the following reasons:

      Your refusal to accept responsibility for the offense(s) committed.
      The negative recommendation made by the Department of
      Corrections.
      Your unacceptable compliance with prescribed institutional programs.
      Your need to participate in and complete additional institutional
      programs.
      Your interview with the hearing examiner.

(Petition Ex. C.) The Board notified Jennings that if interviewed in the future for
parole, the Board will consider, inter alia, whether he successfully completed a
treatment program for sex offenders and his prescriptive program plan. (Id.)
      Jennings took advantage of the inmate grievance system and filed at least
one grievance alleging that he was assigned an incorrect inmate number upon his
return to the state system on January 29, 2004. (Id. ¶ 25.) In response, the

                                         4
Department reassigned Jennings to his initial inmate number, EN1581, but still
required Jennings to participate in a prescriptive plan for sexual offenders. (Id. ¶¶
25, 27.) At the request of Jennings’ attorney, the sentencing judge for Jennings’
criminal cases discussed above, the Honorable Nancy Butts, sent the Board a letter
on July 3, 2007, indicating that, at least as it pertained to the docket number
associated with his Corruption of Minors conviction, Jennings was “neither
charged with, nor convicted of any sex related offenses.” (Id., Ex. B.) A copy of
the letter was sent to Jennings’ counselor at SCI-Houtzdale, the SCI at which he
was housed at this time. (Id.)
       Jennings filed a Grievance on August 24, 2009, requesting that his records
be corrected and that he be given credit for the time he has been incarcerated. (Id.
¶ 30, Ex. F.) The Department’s Grievance Officer denied the request, concluding:

       [Your Grievance] appears to center around your belief that the Sex
       Offender Program (SOP) should never have been added to your
       Correctional Plan under your new number because you should have
       been reentered under your old number. Regardless of what number
       you were serving under and when, both your current offense and your
       prior offense are SOP related. You received a Parole Board action on
       2/11/05 which stipulated that you complete SOP treatment. Each year
       an Annual Review is conducted on each inmate. At that time, the
       counselor is required to review your case and has the authority to
       change your Correctional Plan. The addition of the SOP program to
       your Correctional Plan was warranted based on your previous and
       current offenses. Your refusal to participate in that programming is
       the reason you have not been supported for parole. Therefore, you are
       the only one who can be blamed for the “three extra years” you feel
       have been added to your minimum release date.

       Since there are no legitimate time credit issues in your case, your
       request for your minimum to be readjusted is denied. Your grievance
       is denied.

(Id., Ex. F.)

                                         5
      On September 6, 2012, the Board granted Jennings parole under Inmate
Number FR0460. (Id. ¶ 24, Ex. D.) The record does not reveal why Jennings is
currently serving a term of incarceration at SCI-Benner Township.
      Jennings alleges that despite acknowledging that he was classified under a
wrong number, the Department refused to correct its error and did not remove the
sexual offender program from his prescriptive program while he served his
sentence under Inmate Number EN1581, related to his Corruption of Minor
conviction. (Id. ¶ 27.) He further alleges that because he should not have been
required to complete the sexual offender program while serving the Corruption of
Minors sentence, he should have been granted parole from that sentence on
October 13, 2003, resulting in a minimum date for his Sexual Assault and Indecent
Assault convictions of October 14, 2009. (Id. ¶ 29.) Jennings seeks a writ of
mandamus ordering the Department to “correct his program[m]ing requirements
which would make him eligible for parole consideration in 2006 and to properly
calculate his credit for incarceration and maximum sentences.”         (Id., Count I
Wherefore Clause.) Jennings also seeks a writ of mandamus ordering the Board to
“correct his records and . . . to properly calculate his credit for incarceration and
maximum sentences.” (Id., Count 2 Wherefore Clause.)


II.   RESPONDENTS’ POs
      Respondents separately filed POs to the Petition. The Department’s single
PO is in the nature of a demurrer, and alleges that mandamus will not lie because
Jennings has not established a clear right to relief. (Department’s POs ¶ 19.) The
Department alleges that developing a prescriptive plan is an act of discretion, and
there is nothing that precludes the Department from considering the entirety of an


                                         6
inmate’s criminal file when developing a prescriptive plan. (Id. ¶¶ 21-22.) The
Department points to information within Jennings’ criminal files that justifies its
decision to require Jennings to undergo sex offender treatment. Specifically, the
Department notes that the Probable Cause statement in Jennings’ files shows that
the conduct underlying his Corruption of Minors charge was sexually related
notwithstanding the fact that he pled nolo contendere to a charge that did not
include a sexual component. (Id. ¶¶ 24-25.)
      The Board filed two POs, also in the nature of a demurrer. First, the Board
demurs to the Petition by viewing the Petition as an appeal of its decision to deny
Jennings parole on May 22, 2006. (Board’s POs ¶¶ 8-13.) The Board alleges that
the decision to deny parole is not an adjudication and cannot be appealed. (Id. ¶
12.) Next, the Board alleges that Jennings has not stated a claim for mandamus
relief in our original jurisdiction because Jennings, like all other inmates, has no
clear right to parole. Mandamus, according to the Board’s POs, can be obtained in
a parole case only to direct the Board to follow the proper procedures and law
when deciding whether to grant or refuse parole. (Id. ¶ 19.) Furthermore, the
Board alleges that Jennings has not stated a claim because he has not alleged that
the Board has a clear duty. (Id. ¶ 34.) According to the Board, the Petition does
not adequately state a claim because Jennings has not pleaded that he ever filed a
parole application for the Board’s consideration between 2006 and 2012. (Id. ¶
33.) Without an application, the Board alleges, it has no duty to consider parole.
(Id. ¶ 34.)   Both the Department and the Board request that the Petition be
dismissed.




                                         7
III.   DISCUSSION
       This Court has explained our standard of review in considering preliminary
objections to an application for a writ of mandamus as follows.

       Mandamus is an extraordinary writ designed to compel performance
       of a ministerial act or mandatory duty 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. Mandamus is not
       available to establish legal rights, but is appropriate only to enforce
       rights that have been established. In considering preliminary
       objections, we must consider as true all well-pleaded material facts set
       forth in the petition and all reasonable inferences that may be drawn
       from those facts. Preliminary objections will be sustained only where
       it is clear and free from doubt that the facts pleaded are legally
       insufficient to establish a right to relief. We need not accept as true
       conclusions of law, unwarranted inferences from facts, argumentative
       allegations, or expressions of opinion.

Wilson v. Pennsylvania Bd. of Prob. & Parole, 942 A.2d 270, 272 (Pa. Cmwlth.
2008) (citations omitted).
       Jennings’ allegations focus on the Department’s decision to prescribe sexual
offender treatment and the Board’s subsequent denial of parole on the basis that
Jennings did not complete such treatment. We shall address both issues in turn.


       A.    Prescribed Programming
       Jennings argues that the Department has a duty to assess the needs of each
inmate to determine appropriate counseling needs and services and that he has a
right to be correctly categorized.     He alleges that his Corruption of Minors
conviction did not include a sexual element and, therefore, the Department
breached its duty to him by prescribing sexual offender treatment while he was
serving his sentence for that conviction. Jennings alleges, and the Department


                                          8
concedes, that he was incorrectly assigned a new inmate identification number
when he returned to state custody on January 29, 2004. (Petition ¶ 17, Ex. F.)
Jennings argues that if not for the incorrect assignment, he would not have been
prescribed sexual offender treatment at that time and could have received parole
from his Corruption of Minors sentence.
      Section 102 of the Prisons and Parole Code defines “prescribed
programming” as “[a]n individualized treatment plan that is part of the correctional
plan jointly developed by the department and the board 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 reoffense by an
offender.” 61 Pa. C.S. § 102. One form of prescribed programming is the sexual
offender treatment program. Section 9718.1(b) of the Sentencing Code, 42 Pa.
C.S. § 9718.1(b), requires all persons convicted of certain enumerated offenses and
adjudicated a sexually violent predator under Section 9799.12 of the Sentencing
Code, 42 Pa. C.S. § 9799.12, to participate in the sexual offender treatment
program as a condition for parole. Corruption of Minors is listed as an offense
requiring sexual offender treatment, but only “if the offense involved sexual
contact with the victim.” 42 Pa. C.S. § 9718.1(a)(3).
      As Judge Butts stated in her letter, Jennings’ conviction for Corruption of
Minors did not include a sexual element. However, neither Section 9718.1 of the
Sentencing Code, nor any other provision of law, provides that only those
convicted of such crimes can be prescribed sexual offender treatment.           See
Saunders v. Dep’t of Corr. (Pa. Cmwlth., No. 524 M.D. 2015, filed June 30,
2016), slip op. at 15-16 (stating that “a ‘sexually violent predator’ designation
under Section 9799.12 of the Sentencing Code or a conviction for one of the


                                          9
enumerated offenses in Section 9718.1 is not a precondition to the Department’s
assessment of whether an inmate needs to participate in the [sexual offender
treatment program] and part of the inmate’s [prescriptive plan]”).4                           In
circumstances where the offender was not adjudicated a sexually violent predator
under Section 9799.12 of the Sentencing Code, 42 Pa. C.S. § 9799.12, and
convicted of the crimes enumerated in Section 9718.1(a), the Department and the
Board may still, within its discretion, prescribe sexual offender treatment based on
“a diagnostic evaluation and risk and needs assessment.” 61 Pa. C.S. § 102.
       This discretion is essential in light of the “unique nature and requirements of
the prison setting,” Small v. Horn, 722 A.2d 664, 669 (Pa. 1998), and the
Department’s “duty . . . to protect prisoners from violence at the hands of other
prisoners,” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (citations omitted). The
Department’s purpose is not only to provide protection to the outside community
by housing dangerous inmates, but also to provide “a safe and humane
environment” for inmates. Section 91.2 of the Department’s Regulations, 37 Pa.
Code § 91.2.       It is well-known that sexual assault is prevalent in the prison
environment. In the Prison Rape Elimination Act of 2003, the United States
Congress found that:

       2,100,146 persons were incarcerated in the United States at the end of
       2001 . . . [E]xperts have conservatively estimated that at least 13
       percent of the inmates in the United States have been sexually
       assaulted in prison. Many inmates have suffered repeated assaults.
       Under this estimate, nearly 200,000 inmates now incarcerated have

       4
         Saunders is an unreported panel decision of this Court and, pursuant to Section 414(a)
of this Court’s Internal Operating Procedures, an unreported panel decision issued by this Court
after January 15, 2008 may be cited “for its persuasive value, but not as binding precedent.” 210
Pa. Code § 69.414(a).

                                               10
      been or will be the victims of prison rape. The total number of
      inmates who have been sexually assaulted in the past 20 years likely
      exceeds 1,000,000.


42 U.S.C. § 15601(1)-(2). Given the foreseeable threat posed by sexual assault
inside a prison’s walls, the Department must maintain the discretion, within the
bounds of the Constitution and any relevant statute, to prescribe sexual offender
treatment when it deems necessary, and this Court must follow the counsel of the
United States Supreme Court and “exercise restraint in supervising the minutiae of
prison life.” McKune v. Lile, 536 U.S. 24, 37 (2002).
      Even if Jennings is correct and the Department lacked discretion to prescribe
sexual offender treatment to inmates not convicted of a sexual offense, Jennings’
argument ignores the fact that he was convicted of a sexual crime four months after
he was convicted of Corruption of Minors, and was, in fact, a convicted sexual
offender incarcerated for Sexual Assault and Indecent Assault at the time he was
prescribed sexual offender treatment. While Jennings may have been sentenced to
consecutive sentences for two distinct crimes, his sentences were automatically
aggregated to form a single sentence pursuant to Section 9757 of the Sentencing
Code5 so that he was incarcerated for both crimes at the time he was prescribed
sexual offender treatment. Forbes v. Dep’t of Corr., 931 A.2d 88, 92 (Pa. Cmwlth.

      5
          42 Pa. C.S. § 9757. Section 9757 provides:

      Whenever the court determines that a sentence should be served consecutively to
      one being then imposed by the court, or to one previously imposed, the court shall
      indicate the minimum sentence to be served for the total of all offenses with
      respect to which sentence is imposed. Such minimum sentence shall not exceed
      one-half of the maximum sentence imposed.

Id.

                                              11
2007), aff’d, 946 A.2d 103 (2008). It is the policy of the Department to conduct an
assessment of all inmates incarcerated for a sexual offense,6 and Jennings has no
clear right to not be evaluated for mental health or sexual offender treatment. We
see no basis for Jennings’ argument that the timing of prescribed treatments must
correspond with the order in which an offender is serving consecutive, aggregated,
sentences.
       Because the Department, in furtherance of its purpose to provide a safe
environment for inmates, maintains the discretion to prescribe treatment based on
the results of an assessment, Jennings’ allegation that the Department prescribed
sexual offender treatment while Jennings was serving his sentence for Corruption
of Minors is of no moment. We see no error in the Department exercising its
discretion to prescribe to Jennings sexual offender treatment, and we sustain the
Department’s PO to Count 1 of the Petition.


       B.      Parole
       Jennings argues that the Board should not have considered his failure to
participate in the sexual offender treatment program as a prerequisite for parole
because his Corruption of Minors conviction was not sexual in nature. According
to Jennings, but for his non-participation with the sexual offender program, he


       6
          We may take judicial notice of the Department’s policies which appear on its website.
Hill v. Dep’t of Corr., 64 A.3d 1159, 1165 n.3 (Pa. Cmwlth. 2013). Section 11 of the
Department’s Access to Mental Health Care Procedures Manual states that “Permanent facilities
are responsible for identifying, tracking and assessing all sexual offenders received.”
Department Policy 13.8.1, Section 11(B)(2)(a). To that end, facilities are required to assess all
offenders “currently incarcerated for a sex offense” within two months of arrival at the facility.
Id., Section 11(B)(4)(a). The assessment procedure “shall include, but not be limited to, a case
file review . . . .” Id., Section 11(B)(4)(b).

                                               12
would have been eligible for parole when he reached the minimum date for his
Corruption of Minors charge on October 13, 2003. (Petition ¶ 29.)
      Mandamus, a rare and extraordinary writ in all its applications, is further
limited in parole matters. We explained in Weaver v. Pennsylvania Board of
Probation and Parole, 688 A.2d 766, 769-70 (Pa. Cmwlth. 1997) that

      [t]he options for a prisoner seeking review of the Board’s failure to
      grant parole are very limited due to the nature of parole itself. . . .
      The Board’s decision to grant or deny parole is not a decision in the
      ordinary sense, because, when released, a parolee is continuing to
      serve his or her sentence. Parole is nothing more than a possibility,
      and, when granted, it is nothing more than 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. Because it is
      a favor, a prisoner has neither an absolute right to parole nor a liberty
      interest in receiving parole. In other words, in Pennsylvania, a
      prisoner has no constitutionally protected liberty interest in being
      released from confinement prior to the expiration of his or her
      maximum term.

Id. (citations omitted) (emphasis added).
      Because parole is a matter of grace given to the discretion of the Board,
mandamus rarely lies in parole matters. Id. at 776. “The only relief that [an
inmate] can obtain through mandamus is for the proper procedures be followed and
the proper law be applied by the Board in ruling on [an] application for parole.”
Id. at 777. In such a case, mandamus will lie if a petitioner could show that the
Board’s action was “based upon an erroneous conclusion that it had the discretion
to deny parole for the reason given.” Id.
      Here, the Board denied Jennings parole in 2006 for, inter alia, his
“unacceptable compliance with prescribed institutional programs.” (Petition, Ex.
C.)   The Board further determined that future parole reviews would consider

                                         13
whether Jennings successfully completed a treatment program for sexual offenders
and his prescriptive plan. (Id.) As stated above, the Department acted within its
discretion to prescribe Jennings sexual offender treatment. The question now is
whether the Board had the discretion to deny Jennings parole based on Jennings’
decision to not participate in the sexual offender treatment program.
      In Wilson v. Pennsylvania Board of Probation and Parole, 942 A.2d 270,
272 (Pa. Cmwlth. 2008), we addressed an inmate’s petition for a writ of mandamus
related to prescribed sexual offender treatment. The petitioner in that case was
convicted of a drug charge, while a related charge of corruption of minors with a
sexual component was withdrawn. Id. The petitioner was denied parole for failure
to comply with a prescriptive plan that included sexual offender treatment. The
petitioner argued that his Fifth Amendment Right to self-incrimination was
violated by the Board when it required him to participate in the sexual offender
program as a prerequisite for his parole because the sexual offender treatment
program requires an admission of guilt. Id. We held that the petitioner failed to
state a mandamus claim under the Fifth Amendment because the sexual offender
treatment program furthers a legitimate penological objective, and that any adverse
effects of choosing to not participate in the program, including the denial of parole,
are not atypical in relation to the ordinary incidents of prison life. Id. at 273 (citing
McKune, 536 U.S. at 26). Critical to the case at bar, we found no constitutional
concern in the fact that the petitioner was not convicted of a crime of a sexual
nature because “the ‘official version’ of his crime” showed that it was sexual in
nature. Id. at 273 n.3. We further held the petitioner did not state a claim under
the Due Process Clauses of the United States or Pennsylvania Constitutions



                                           14
because “[a]n inmate has no liberty interest in . . . not being labeled a sex offender,
or in not being required to participate in sex offender programming. Id. at 273.
       Because we concluded in Wilson that inmates, including those whose crime
of conviction does not have a sexual component,7 have no clear right to not have
the Board consider participation in prescribed sexual offender programming as a
prerequisite of parole, we must conclude here that the Board acted within its
discretion by denying Jennings parole from his sentence for Corruption of Minors
based on Jennings’ failure to comply with prescribed programs. We, therefore,
sustain the Board’s demurrer to Count 2 of the Petition.




       7
         We distinguish between an inmate’s crime of conviction and the conduct underlying the
offense. The Department and the Board are entitled to look at the totality of the circumstances
associated with the offense, not just the section of the Crimes Code for which he was convicted,
in determining a prescriptive plan and parole eligibility. In Wilson, the Board looked at evidence
showing that at the time of petitioner’s arrest for his drug offense he was “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. Here, like in Wilson, the Board’s decision to consider Jennings’ participation in the
sexual offender treatment program as a prerequisite for parole from his Corruption of Minors
sentence is supported by Jennings’ criminal file. Attached to the Petition for Review is a
Probable Cause statement detailing the conduct that led to his arrest and conviction for
Corruption of Minors. (Petition, Ex. B.) According to that document, Jennings and another man
purchased alcohol for two underage females, one age 15 and one age 17. (Id.) The men took the
underage females to the house both men shared and made a video recording of the men and the
victims drinking together. (Id.) The other man took the video camera into a bedroom and
recorded himself engaging in various sexual acts with the 15 year old victim. (Id.) The video
recording shows Jennings walking into the room and laughing after the sex acts ceased. (Id.)
Thus, even though Jennings “was neither charged with, nor convicted of any sex related
offenses,” (Id.), the evidence does show that the conduct underlying Jennings’ Corruption of
Minors conviction was sexual in nature.

                                               15
      For the foregoing reasons, the Department’s PO and the Board’s second PO
are sustained.8 The Petition is, hereby, dismissed.




                                                 ________________________________
                                                 RENÉE COHN JUBELIRER, Judge




      8
          Due to our disposition, the Board’s first PO is dismissed as moot.

                                                16
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joseph Martin Jennings, II,              :
                         Petitioner      :
                                         :
                   v.                    :   No. 522 M.D. 2015
                                         :
Pennsylvania Department of               :
Corrections, Pennsylvania Board of       :
Probation and Parole,                    :
                         Respondents     :



                                      ORDER


      NOW, November 30, 2016, the preliminary objection in the nature of a
demurrer of the Department of Corrections and the second preliminary objection in
the nature of a demurrer of the Board of Probation and Parole (Board) in the
above-captioned matter are, hereby, sustained. The Amended Complaint filed by
Joseph Martin Jennings, II, is dismissed with prejudice.         The Board’s first
preliminary objection in the nature of a demurrer is dismissed as moot.




                                         ________________________________
                                         RENÉE COHN JUBELIRER, Judge
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph Martin Jennings, II,                     :
                                                : No. 522 M.D. 2015
                              Petitioner        : Submitted: June 17, 2016
                                                :
                      v.                        :
                                                :
Pennsylvania Department of                      :
Corrections, Pennsylvania Board of              :
Probation and Parole,                           :
                                                :
                              Respondents       :


BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

CONCURRING OPINION
BY SENIOR JUDGE FRIEDMAN                                      FILED: November 30, 2016


               I agree with the majority that the preliminary objections filed by the
Department and Board should be sustained because Jennings has failed to establish a
clear right to relief.1 However, I do not agree with the majority that the Department


       1
         Jennings seeks a writ ordering the Department to “correct his program[m]ing requirements
which would make him eligible for parole consideration in 2006 and to properly calculate his credit
for incarceration and maximum sentences.” (Pet., Count I.) Jennings also seeks a writ ordering the
Board to “correct his records and . . . to properly calculate his credit for incarceration and maximum
sentences.” (Id., Count 2.) Jennings maintains that he was improperly ordered to participate in a
sex offender treatment program for his Corruption of Minors conviction and, thereafter, improperly
denied parole for his failure to participate. Jennings admits, however, that he was denied parole in
2006 for numerous reasons, not just his failure to participate in sex offender program treatment. (Id.
¶ 22; Ex. C.) Thus, Jennings has failed to show he would have been paroled absent the requirement
of sex offender program treatment and, thus, has failed to establish a clear right to relief.
can prescribe sexual offender treatment while an inmate is serving a non-sexual
offense. I also disagree with the majority’s determination that the conduct underlying
Jennings’ Corruption of Minors conviction, which consisted of walking into a
bedroom and laughing, was sexual in nature. Therefore, I concur in the result only.


             There is no dispute that Jennings provided alcohol to a minor and pled
nolo contendere to the charge of Corruption of Minors. There is also no dispute that
Jennings “was neither charged with, nor convicted of any sex related offenses” in
connection with the Corruption of Minors charge. (Pet., Ex. B.)


             In accordance with section 9718.1(a) of the Sentencing Code, 42 Pa.
C.S. §9718.1(a) a person “shall attend and participate in . . . counseling or therapy
designed for incarcerated sex offenders if the person is incarcerated . . . for any of the
following provisions.” Corruption of Minors is listed as an offense requiring sexual
offender treatment only “if the offense involved sexual contact with the victim.” 42
Pa. C.S. §9718.1(a)(3). Because Jennings did not have sexual contact with a minor,
the imposition of participation in sex offender programming is not mandated by
section 9718.1(a) of the Sentencing Code.


             The majority, nonetheless concludes that “the Department and the Board
may still, within its discretion, prescribe sexual offender treatment based on ‘a
diagnostic evaluation and risk and needs assessment.’” (Maj. Op. at 10 (citation
omitted).) The majority then cites to section 11 of the Department’s Access to
Mental Health Care Procedures Manual, which provides that “Permanent facilities are
responsible for . . . assessing all sexual offenders received.” Facilities are required to



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assess all offenders “currently incarcerated for a sex offense” within two months of
their arrival to the facility. (Emphasis added.)


              In this case, Jennings was not “currently incarcerated for a sex offense.”2
Jennings was only serving his sentence for Corruption of Minors, which did not
include a sexual component, when the Department imposed sexual offender
programming and then subsequently refused to parole him in 2006 because, inter
alia, he refused to participate in sex offender programming. Thus, I disagree with the
majority’s statement that Jennings “was incarcerated for both crimes.” (Maj. Op. at
11 (emphasis added).) If sentences are consecutive, as they were here, only one
sentence can be served at a time.


              Further, the majority’s reliance on Wilson v. Pennsylvania Board of
Probation and Parole, 942 A.2d 270 (Pa. Cmwlth. 2008), is misplaced. In that case,
Wilson, who was convicted of a drug charge, was denied parole because he failed to
participate in a prescribed sexual offender treatment program. Id. at 272. This court
concluded that the Board’s requirement that Wilson participate in the sexual offender
programming as a prerequisite to parole did not implicate constitutional concerns.
We concluded that although Wilson was not convicted of a sexual crime, “the

       2
         On September 26, 2003, Jennings was sentenced to 12 months’ to 5 years’ incarceration
under Inmate Number EN1581 for the nolo contendre plea to the Corruption of Minors charge.
(Pet. ¶ 14.) On January 26, 2004, Jennings was convicted of Sexual Assault and Indecent Assault
and assigned a new Inmate Number FRO460. (Id. ¶¶16, 17.) On January 29, 2004, Jennings was
returned to custody to serve his Corruption of Minors sentence. (Id. ¶ 17.) On April 8, 2004,
Jennings received a sentence of 5 to 10 years’ incarceration for the Sexual Assault conviction and a
consecutive sentence of 1 to 2 years’ incarceration for the Indecent Assault conviction. (Id. ¶ 18.)
Those sentences were to run consecutive to Jennings’ Corruption of Minors sentence. (Id. ¶ 18; Ex.
G.)



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‘official version’ of his crime” showed that it was sexual in nature. Id. at 273 n.3.
Specifically, at the time of Wilson’s arrest for the drug offense, Wilson was “naked,
wearing a condom, and trying to initiate a sexual relationship with a 13-year-old
girl.” Id.


             Here, the majority relies on the Probable Cause statement for Jennings’
arrest to conclude that his Corruption of Minors conviction had a sexual component.
I cannot agree. According to the Probable Cause statement, Jennings and another
man purchased alcohol for two underage females, ages 15 and 17. (Pet., Ex. B.) The
men took the females to a house that the men shared and made a video recording of
everyone drinking together. (Id.) The other man took the video camera into a
bedroom and recorded himself engaging in sex acts with the 15 year old victim. (Id.)
After the sex acts ceased, the video recording shows Jennings walking into the
bedroom and laughing. (Id.) Although the conduct underlying the other male’s
conviction was sexual in nature, Jennings’ conduct was not. There is nothing in the
record to indicate that Jennings intended to or engaged in sexual actions. I cannot
agree with the majority’s conclusion that “the evidence does show that the conduct
underlying Jennings’ Corruption of Minors conviction was sexual in nature.” (Maj.
Op. at 15, n.6.)


             Accordingly, I concur in the result only.




                                       ___________________________________
                                       ROCHELLE S. FRIEDMAN, Senior Judge




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