89 Pa. Commw. 512 | Pa. Commw. Ct. | 1985
Opinion by
Ellis Barnhouse appeals from the denial of parole by the Pennsylvania Board of Probation and Parole.
We must determine whether the board’s refusal to grant petitioner parole is unconstitutional because it amounts to coerced self-incrimination, where the parole board twice has considered and refused parole to the petitioner because of his lack of cooperation in disclosing additional industrial waste locations. We must also determine whether the board abused its discretion in refusing to grant parole because of petitioner’s failure to make restitution.
The petitioner pleaded guilty to charges of bribery and related matters, and the Court of Common Pleas
On September 17, 1984, the board again denied petitioner parole because of his lack of cooperation with the Department of Environmental Resources and his lack of cooperation with the City of Philadelphia in making restitution. From this denial, the petitioner filed a petition for review with this court.
In accordance with Banks v. Pennsylvania Board of Probation and Parole, 4 Pa. Commonwealth Ct. 197 (1971), the board has a duty to process the petitioner’s application for parole, and it has done so here. The board, however, has discretion to grant or deny parole because parole, being a matter of administrative discretion and determination, is nonjudicial and not generally subject to judicial review under the law of Pennsylvania. LaCamera v. Pennsylvania Board of Probation and Parole, 13 Pa. Commonwealth Ct. 85, 317 A.2d 925 (1974).
However, where the petitioner asserts that denial of parole violated his constitutional rights, our scope of review includes a “determination of whether the Board failed to exercise any discretion at all, whether the Board arbitrarily and capriciously abused its discretion so as to' amount to a violation of a constitutional right, and whether the procedure utilized by the Board violated any constitutional rights of the prisoner.” Counts v. Pennsylvania Board of Probation and Parole, Pa. Commonwealth Ct. , 487 A.2d 450 (1985).
Petitioner also argues that the board abused its discretion in denying his parole because of his failure to make restitution. Although the fact that the trial court ordered restitution to begin after the expiration of petitioner’s minimum sentence gives some substance to the petitioner’s claim that the trial judge contemplated that restitution would be coordinated with ability to earn funds while on parole, the fact remains
Accordingly, we affirm.
Order
Now, May 24, 1985, the adjudication of the Pennsylvania Board of Probation and Parole, dated September 17, 1984, is affirmed.
Act of August 6, 1941, P.L. 861, as amended, 61 P.S. §§331.1-331.34.
Section 21 of the Act provides:
The board is hereby authorized to release on parole any convict confined in any penal institution of this Commonwealth as to whom power to parole is herein granted to said board, . . . whenever in its opinion the best interests of the convict justify or require his being paroled and it does not appear that the interests of the Commonwealth will be injured thereby.