Constitutionality of Life Sentence without Possibility of Parole; PCRA; Collateral Attacks on Criminal Sentencing

Scott v. Pa. Bd. of Probation and Parole, 256 A.3d 483 (Pa. Cmwlth. 2021), original jurisdiction, appeal docket 18 WAP 2021

Six individuals serving mandatory life sentences without the possibility for parole (LWOP) due to their convictions for felony murder filed an action against the Pennsylvania Board of Probation and Parole (Board) in Commonwealth Court challenging the felony murder rule. The felony murder rule holds a person liable for murder if the person participates in a felony that leads to a death, even if the person plays no direct role in the death and those found guilty are automatically sentenced to life and prohibits the possibility for parole. Specifically, Section 1102(b) of the Crimes Code, 18 Pa. C.S. § 1102(b), provides that “a person who has been convicted of murder of the second degree … shall be sentenced to a term of life imprisonment,” and Section 6137(a)(1) of the Parole Code, 61 Pa. C.S. § 6137(a)(1), provides that “[t]he [B]oard may … release on parole any inmate to whom the power to parole is granted to the [B]oard by this chapter, except an inmate condemned to death or serving life imprisonment.” Petitioners argued that the felony murder rule does not serve any legitimate governmental interest and is cruel punishment prohibited by the Pennsylvania Constitution.

The Board filed preliminary objections asserting that the Commonwealth Court lacked jurisdiction and that the Board was an improper party. The Board argued that Section 761(a)(1)(i) of the Judicial Code, 42 Pa. C.S. § 761(a)(1)(i), provides that Commonwealth Court does not have jurisdiction over “[a]ctions or proceedings in the nature of applications for a writ of habeas corpus or post-conviction relief not ancillary to proceedings within the appellate jurisdiction of the [C]ourt.” Therefore, the Board argued that, because Petitioners are challenging the legality of their sentences, their claims are cognizable under the Post Conviction Relief Act (PCRA), which provides in pertinent part:

This subchapter provides for an action by which … persons serving illegal sentences may obtain collateral relief. 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 when this subchapter takes effect, including habeas corpus and coram nobis.

42 Pa. C.S. § 9542. The Board further argued that even if Petitioners’ challenge was limited to Section 6137(a) of the Parole Code and their ineligibility for parole, eligibility for parole is part of a criminal sentence, as it is determined by the court at the time of sentencing, as acknowledged in Section 6137(a)(3), which provides that “The power to parole granted under this section to the [B]oard may not be exercised in the [B]oard’s discretion at any time before, but only after, the expiration of the minimum term of imprisonment fixed by the court in its sentence or by the Board of Pardons in a sentence which has been reduced by commutation.” Moreover, the Board asserted that Section 1102 of the Crimes Code and Section 6137 of the Parole Code are inextricably intertwined, rendering Petitioners’ sentences mandatory LWOP sentences subject to the PCRA and that Petitioners’ challenge to Commonwealth Court amounted to impermissible forum shopping. Finally, the Board contended that the Board is not a proper party to a petition seeking post-conviction relief. Petitioners countered that their challenge is limited to Section 6137(a)(1) of the Parole Code and the Board’s enforcement of that provision. In other words, Petitioners asserted they were not challenging Section 1102(b) of the Crimes Code or seeking release, but rather their complaint raised a constitutional challenge as to the lifetime ineligibility for parole as a condition of their sentences. Petitioners argued that such a challenge is not cognizable under the PCRA or in a habeas corpus proceeding and, if successful, would have no impact on their underlying “life” sentences such that Commonwealth Court lacks jurisdiction.

Commonwealth Court sustained the Board’s preliminary objection for lack of jurisdiction and dismissed the petition. Commonwealth Court explained that Petitioners’ claim that they did not seek to challenge their sentences was belied by the petition for review:

As noted, the Petition sets forth two claims for relief. Under the first claim, Petitioners assert that “[LWOP] sentences … constitute cruel and unusual punishment in violation of the Eighth Amendment” to the United States Constitution “when applied to defendants who did not kill or intend to kill as part of their crime of conviction and thus have lessened culpability.” (Petition ¶ 137.) Petitioners further claim that “[their LWOP] sentences for felony murder convictions, where they did not kill or intend to kill as part of their crime of conviction, constitute cruel punishment in violation of Art[icle] I, [Section] 13” of the Pennsylvania Constitution, “which provides at least as much protection as the Eighth Amendment” to the United States Constitution. (Petition ¶ 138.) Under their second claim, they likewise assert that their “death-by-incarceration sentences for felony murder convictions, where they did not kill or intend to kill as part of their crime of conviction, constitute cruel punishments in violation of Art[icle] I, [Section] 13.” (Id. ¶ 143.) These averments squarely challenge the constitutionality of Petitioners’ sentences.

We additionally observe that, prior to setting forth their two claims for relief, Petitioners dedicate a significant portion of their Petition to the factual and legal framework supporting those claims, much of which is directed to the imposition of mandatory LWOP sentences generally and their sentences in particular. For example, Petitioners aver that Pennsylvania “is an outlier both within the United States and globally in the imposition of death-by-incarceration sentences,” and they claim that the population of “people serving death-by-incarceration sentences in Pennsylvania” is plagued by racial disparities and public health concerns due to aging. (Petition ¶¶ 9, 15-17.) As noted, Petitioners rely upon Miller, among other cases, to assert that their “sentences are demonstrably disproportionate and excessive,” and even go so far as to call upon this Court to analyze the constitutionality of their sentences. (See Petition ¶¶ 96-97 (averring that “in analyzing the constitutionality of [Petitioners’] death-by-incarceration sentences, this Court must” assess various factors)); (see also id. ¶ 111 (explaining that “[Petitioners] are prepared to demonstrate at an evidentiary hearing [that their] sentences are unconstitutionally excessive in light of Eighth Amendment jurisprudence,” and arguing that Miller and other cases “compel a prohibition on [death-by-incarceration] sentences for felony murder under Pennsylvania’s cruel punishments clause”).)

Slip op. at 11-13. Therefore, the court concluded that Petitioners were seeking post-conviction relief and their claims were cognizable under the PCRA. The court further found that despite Petitioners’ characterization of their challenge was limited to the constitutionality of their ineligibility for parole under the Parole Code, such nonetheless amounted to a collateral attack on their sentences and were thus cognizable claims under the PCRA:

While these circumstances at first blush appear to support Petitioners’ claim that original jurisdiction lay with this Court, we agree with the Board that Petitioners have fashioned the Petition in this manner in a thinly veiled attempt to forum shop through pleading, which we will not countenance. See Stackhouse, 832 A.2d at 1008. In so doing, we note that this Court has already rejected a challenge remarkably similar to this one on the basis that it constituted a collateral attack on a criminal sentence. In Hill v. Commonwealth, 2008 WL 9396706 (Pa. Cmwlth., No. 152 M.D. 2008, filed September 26, 2008),7 the petitioner Hill filed a complaint in our original jurisdiction, maintaining that he was serving a life sentence for second degree murder. In his complaint, he asserted a challenge to Section 1102 of the Crimes Code and “Section 21 of what is popularly called the ‘Parole Act,’ ” which preceded Section 6137 of the Parole Code and likewise prohibited parole for an inmate serving a life sentence; Hill challenged that those sections violated various provisions of the Pennsylvania Constitution. Hill, slip op. at 2-4. Hill requested that the Court grant him declaratory relief and enjoin the Commonwealth from enforcing Section 1102 of the Crimes Code and former Section 21 of the Parole Act. Id. at 6. The Commonwealth of Pennsylvania and other named respondents filed preliminary objections, demurring on the basis that the PCRA provided the only means by which Hill could attack his criminal sentence. Id. at 4-5.

This Court agreed that Hill was attempting to collaterally attack his sentence and parole eligibility, which fell within the purview of the PCRA. Id. at 6. While Hill alleged that he sought “merely to challenge the constitutionality of Section 1102 of the Crimes Code and [former] Section 21 of the Parole Act” and argued “that the relief he [sought] only stem[med] from this challenge,” we held:

[I]t is clear from examining Section 1102 of the Crimes Code, which provides for a life sentence for second[ ]degree murder, and Section 21 of the Parole Act, which provides that a convict may not be paroled if he is serving a life sentence, that Hill is attacking his ineligibility for parole, which stems from his sentence of life imprisonment. This is a collateral attack on his sentence and is, therefore, an attack which must be brought under the PCRA and not as a complaint for declaratory judgment and injunctive relief in this Court’s original jurisdiction.

Id. at 6-7.

Although decided in the context of a demurrer, the analysis in Hill supports our conclusion that this Court lacks original jurisdiction over Petitioners’ claims pursuant to Section 761(a)(1)(i) of the Judicial Code. That is, here, while Petitioners purport to limit their challenge only to the constitutionality of Section 6137 of the Parole Code and seek “mere parole eligibility,” they are collaterally attacking their sentences. They may not collaterally attack their sentences by using a civil action * in this Court seeking declaratory and injunctive relief. See also Guarrasi v. Scott, 25 A.3d 394, 402 (Pa. Cmwlth. 2011) (observing that plaintiff “may not use a civil action for declaratory judgment in our original jurisdiction to collaterally attack the legality of his criminal proceedings” and reiterating that “[t]he PCRA is the sole means by which … persons serving illegal sentences may obtain collateral relief”) (internal quotation marks and citations omitted).

Slip op. at 14-15 (footnotes omitted).  The court further reasoned that even if Petitioners’ Parole Code claim could be separated from their sentence under the crime code, “their success on that claim would not result in the ultimate relief they seek: parole eligibility.” Slip op. at 16. The court explained, “[t]his is because”:

while Section 6137(a)(1) prohibits parole eligibility for inmates “serving life imprisonment,” Section 6137(a)(3) of the Parole Code further prohibits parole consideration for inmates who have not served their minimum sentences as set by the sentencing court. See 61 Pa. C.S. § 6137(a)(3) (“The power to parole granted under this section to the [B]oard may not be exercised in the [B]oard’s discretion at any time before, but only after, the expiration of the minimum term of imprisonment fixed by the court in its sentence or by the Board of Pardons in a sentence which has been reduced by commutation.”). Moreover, this Court has observed that a sentence of life imprisonment imposed under Section 1102(b) of the Crimes Code is a mandatory minimum sentence. See Castle v. Pa. Bd. of Prob. & Parole, 123 Pa.Cmwlth. 570, 554 A.2d 625, 628 (1989) (concluding that Section 1102(b)’s omission of the “words ‘not less than’ or ‘at least’ does not render [an inmate’s] sentence something other than a mandatory minimum”).

Thus, Petitioners’ “life” sentences, which they purport not to challenge here, preclude Petitioners’ eligibility for parole pursuant to Section 6137(a)(3) of the Parole Code regardless of Section 6137(a)(1)’s applicability. Further, if we were to direct the Board to consider Petitioners’ eligibility for parole despite their unchallenged “life” sentences, granting such relief would, in effect, equate to this Court and/or the Board imposing new minimum sentences upon Petitioners. Neither this Court nor the Board, however, can alter Petitioners’ criminal sentences; that task is for the courts of common pleas. These considerations lend additional support to our conclusion that, notwithstanding their styling of the Petition and arguments to the contrary, Petitioners are indeed challenging their sentences and seeking sentencing relief.

Slip op. at 16-17 (footnote omitted). In summary, the majority concluded:

In sum, although styled as a “Petition for Review in the Nature of a Complaint Seeking Declaratory Judgment and Injunctive Relief” in form, it is apparent that Petitioners are launching a collateral attack on their sentences in substance. As the Petition is “in the nature of an application seeking … post conviction relief” and there are no matters pending in our appellate jurisdiction that are ancillary to the Petition, this Court lacks jurisdiction over the Petition pursuant to Section 761(a)(1) of the Judicial Code.

Slip op. at 20. While the court noted that a case filed in the wrong tribunal should be transferred to the proper tribunal, Commonwealth Court declined to transfer the action to common pleas for consideration as a PCRA petition and instead dismissed the complaint because the Board was the only named respondent, reasoning that:

Notwithstanding, in view of the true nature of Petitioners’ challenge, we further agree with the Board that it is not a proper party to the action. Rather, it is the Commonwealth that participates in post-conviction proceedings. See Pa. R. Crim. P. 902(A) (“A petition for post-conviction collateral relief shall bear the caption, number, and court term of the case or cases in which relief is requested ….”); Pa. R. Crim. P. 903(A)-(B) (explaining that, upon receipt of PCRA petition, clerk of courts shall “make a docket entry, at the same term and number as the underlying conviction and sentence … and … place the petition in the criminal case file,” then “transmit a copy of the petition to the attorney for the Commonwealth”); Pa. R. Crim. P. 906(A) (providing generally that attorney for Commonwealth may elect to file answer or must do so if ordered by court). As the Board is the only named respondent, dismissal is appropriate.

Slip op. at n. 14.

Judge Leadbetter wrote a dissenting opinion, which provides in full:

I do not read the Complaint in this case as an attack on Petitioners’ convictions or sentences, but rather as what it purports to be: a facial and as applied Eighth Amendment challenge to the provisions of the Prisons and Parole Code, which require Petitioners’ continued incarceration long after it has ceased to serve its original penological purpose and, in light of the COVID-19 pandemic and their advanced ages, puts their lives at risk. These claims plainly cannot be raised in petitions filed pursuant to the Post Conviction Relief Act because such petitions have been time-barred for many years and when they were timely, the pled circumstances which now give rise to potential Eighth Amendment claims did not exist. I cannot express any opinion as to whether Petitioners can prevail on these claims, only that we have jurisdiction to address them and should await the development of a factual record and full legal briefing. Accordingly, I would overrule the preliminary objections.

Slip op. at BBL-1 – BBL-2 (footnotes omitted).

In its opinion, the majority expressly disagreed with the dissent’s conclusion regarding jurisdiction, and further disagreed with the dissent’s analysis as to whether the claims were time-barred under the PCRA, countering that:

One of the PCRA’s timeliness exceptions is known as the “newly-discovered facts” exception; it requires that a PCRA petitioner demonstrate that “the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence.” 42 Pa. C.S. § 9545(b)(1)(ii). Insofar as Petitioners’ claims—which we again view as claims cognizable under the PCRA—are premised upon “new” facts such as the COVID-19 pandemic, their advanced ages, or circumstances demonstrating that Petitioners’ continued incarceration no longer serves its penological purpose, those facts would properly be considered in determining whether Petitioners have overcome the PCRA’s one-year jurisdictional time bar through satisfaction of the timeliness exception set forth in Section 9545(b)(1)(ii). 

As a more general matter, we are careful to note that whether a PCRA petitioner is time-barred from bringing a claim that, substantively, is cognizable under the PCRA is immaterial to whether this Court has jurisdiction over that same claim. If it were the case that this Court had jurisdiction over claims that were time-barred under the PCRA, then PCRA petitioners would always bring those claims before this Court, and we would adjudicate them, based on that reasoning. Section 761(a)(1) of the Judicial Code provides, however, that we lack jurisdiction over “actions or proceedings in the nature of applications for … post-conviction relief,” regardless of whether a court of proper jurisdiction is precluded from exercising it on timeliness grounds. To the extent that the dissent can be read to suggest otherwise, we respectfully disagree.

Slip op. at 19-20 (footnote omitted).


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