IN THE COMMONWEALTH COURT OF PENNSYLVANIA 

 

 
 
 

 
 
v. 
 

tephen L. Leonardo, 

Petitioner 
 
 
 

 
 
 
 
 
 
 
 
 
Pa. Board of Probation and Parole, 
 
Josh Shapiro, Pennsylvania Attorney    
 
General, Office of Chief Counsel,  
 
Pennsylvania Department of  
 
Corrections,  
 
 
 

 
 
Respondents 

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:  No. 156 M.D. 2021 
:  Submitted:  October 21, 2022 

EFORE:  HONORABLE ANNE E. COVEY, Judge  
HONORABLE ELLEN CEISLER, Judge 
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge  

PINION NOT REPORTED 

EMORANDUM OPINION BY  
 

JUDGE COVEY 

 

 

 

 

FILED:  March 17, 2023 

Before  this  Court  are  the  Pennsylvania  Parole  Board’s  (Board),1 

Pennsylvania Attorney General Josh Shapiro’s,2 and the Pennsylvania Department 

of  Corrections  Office  of  Chief  Counsel’s  (collectively,  Respondents)  preliminary 

objections  (Preliminary  Objections)  to  Stephen  L.  Leonardo’s  (Leonardo)  pro  se 

petition for review in the nature of a complaint in mandamus (Complaint) filed in 

 

1  Effective  February  18,  2020,  the  Pennsylvania  Board  of  Probation  and  Parole  was 
renamed the Pennsylvania Parole Board.  See Sections 15, 16, and 16.1 of the Act of December 
18, 2019, P.L. 776, No. 115; see also Sections 6101 and 6111(a) of the Prisons and Parole Code, 
61 Pa.C.S. §§ 6101, 6111(a). 

2  On  January  17,  2023,  former  Attorney  General  Josh  Shapiro  was  sworn  in  as 
Pennsylvania’s Governor.  On March 8, 2023, Michelle A. Henry was sworn in as Pennsylvania’s 
Attorney General.  Under Pennsylvania Rule of Appellate Procedure 502(c), when a public officer 
named in an appeal ceases to hold office, “his successor is automatically substituted as a party.”  
Pa.R.A.P. 502(c). 

  S

  B

 
 

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this Court’s original jurisdiction.  After review, this Court sustains the Preliminary 

Objections and dismisses the Complaint. 

Background3 

Leonardo is  currently serving a  14- to 29-year sentence  for  rape and 

involuntary  deviate  sexual  intercourse  convictions  at  the  State  Correctional 

Institution at Rockview.  See Complaint at 7.4  After reaching his parole eligibility 

minimum  sentence  date  in  2018,  Leonardo  applied  to  the  Board  for  parole 

consideration.  See id.  On April 26, 2018, the Board denied Leonardo parole.5  See 

Complaint at 7, 18-19.  The Board also denied him parole on November 15, 2019.6  

See  Complaint  at  7,  20-21.    In  response  to  Leonardo’s  January  25,  2021  parole 

application, by January 28, 2021 letter, the Board informed him: 

The [] Board is not required to consider an application for 
parole by an inmate or his/her attorney submitted within 
three years from the date a Board  [a]ction  was recorded 
after  a  parole  interview  or  hearing, per  Title  61  [of  the] 
(Prisons and Parole [Code (Parole Code)]) as amended in 
2020.  Therefore, your request for review is denied. 

 

3 The facts are as Leonardo alleged in the Complaint. 
4  Because  the  Complaint  pages  are  not  numbered,  and  the  Complaint  is  divided  into 
separate sections with duplicative paragraph numbers, the page numbers referenced in this Opinion 
reflect the Court’s electronic pagination. 

5 The Board’s reasons for denying Leonardo parole in April 2018 were: his risk assessment 
reflected that he posed a risk to the community; his “failure to demonstrate motivation for success”; 
his “denial of the nature and circumstances of the offense(s) [he] committed”; his “refusal to accept 
responsibility  for  the  offense(s)  [he]  committed”;  his  “lack  of  remorse  for  the  offense(s)  [he] 
committed”;  his  “negative  interest  in  parole”;  and  he  “remain[ed]  a  danger  to  the  public.”  
Complaint at 18. 

6  The  Board’s  reasons  for  denying  Leonardo  parole  in  November  2019  were:  his  risk 
assessment reflected that he posed a risk to the community; his “failure to demonstrate motivation 
for  success”;  his  “minimization/denial  of  the  nature  and  circumstances  of  the  offense(s)  [he] 
committed”; his “refusal to accept responsibility for the offense(s) [he] committed”; and his “lack 
of remorse for the offense(s) [he] committed.”  Complaint at 20. 

2 

 

 

 

involuntary  deviate 

[Three-year  review  crimes 
include:  murder, 
voluntary manslaughter, kidnapping, trafficking in 
individuals, involuntary servitude, rape, statutory 
sexual  assault, 
sexual 
intercourse,  sexual  assault,  aggravated  indecent 
assault,  indecent  assault,  incest  and  individuals 
designated as a sexually violent predator under 42 
Pa.C.S.  Ch.  97  Subch[s].  H  (sex  offender 
registration)  or 
(continued  sex  offender 
registration).]  

I 

Complaint  Ex.  A-3  at  1.    Because  the  General  Assembly’s  only  Parole  Code 

amendment  effective  in  2020  that  referenced  a  three-year  parole  review  waiting 

period was its addition of subsection (3.3) (imposing a three-year parole application 

review for those charged with rape and involuntary deviate sexual intercourse) and 

subsection  (3.4)  (imposing  a  three-year  parole  application  review  for  sexually 

violent predators or registered sex offenders) to Section 6139(a) of the Parole Code, 

the only Parole Code amendment to which the Board could be referring was Section 

6139(a) of the Parole Code, 61 Pa.C.S. § 6139(a)(3.3)-(3.4), effective November 25, 

2020.7  See Complaint at 7, Ex. A-3 at 1. 

 

On May 13, 2021, Leonardo filed the Complaint, alleging therein that 

the  Board  arbitrarily  denied  his  parole  without  due  process  despite  that  he  had 

successfully completed all of his required programs, see Complaint at 6-7, 11, and 

the Board’s application of Section 6139(a)(3.3) of the Parole Code violated his right 

to  due  process  and  the  constitutional  prohibition  against  ex  post  facto  laws.    See 

Complaint  at  5-8,  11.    Leonardo  seeks  an  order  from  this  Court  compelling 

Respondents to vacate the Board’s prior parole decisions and “grant [him] a [p]arole 

date . . . .”  Complaint at 11.   

 

7  See  Section  1  of  the  Act  of  November  25,  2020,  P.L.  1219.    Despite  that  Leonardo 
repeatedly  refers  in  his  pleadings  to  the  November  25,  2021  Parole  Code  amendment,  and  the 
General Assembly’s only subsequent amendment to Section 6139 of the Parole Code was effective 
June 30, 2021, see Section 21.1 of the Act of June 30, 2021, P.L. 260, it is clear from the context 
that he meant the November 25, 2020 amendment. 

 

3 

On  December  15,  2021,  Leonardo  filed  a  supplemental  amended 

petition  for  review  in  the  nature  of  a  complaint  in  mandamus,  consisting  of  five 

paragraphs,  wherein  he  alleged  additional 

facts, 

i.e.,  he  had  obtained 

recommendations  for  parole  in  August  2021,  and  the  Board  interviewed  him  on 

October 6, 2021, but again denied him parole on October 25, 2021.  See Amended 

Petition at 2, 4-5.   On December 28, 2021, this Court ordered Respondents to file a 

responsive pleading within 30 days.  Thereafter, Respondents requested an extension 

to file a response, which the Court granted until February 28, 2022. 

On February 28, 2022, Respondents filed the Preliminary Objections, 

asserting  therein  that  the  Complaint  should  be  dismissed  because  it:  (1)  fails  to 

comply  with  Pennsylvania  Rule  of  Appellate  Procedure  (Rule)  1513(c)  (First 

Preliminary Objection); and (2) fails to state a mandamus action upon which relief 

may be granted (demurrer) (Second Preliminary Objection).   

On March 31, 2022, Leonardo opposed the Preliminary Objections, but 

also  filed  a  second  supplemental  amended  petition  for  review  in  the  nature  of  a 

complaint in mandamus (Second Supplement), wherein he again asked this Court to 

“grant  [him]  a  [p]arole  date  .  .  .  .”    Second  Supplement  at  1;  see  also  Second 

Supplement at 6.  In the Second Supplement, Leonardo added paragraph numbers, 

but  omitted  the  previously  included  procedural  history  necessary  to  explain  the 

nature of Leonardo’s incarceration, and that the Board previously denied his parole 

applications and refused to consider his January 2021 parole application based on 

the November 2020 Parole Code amendment (and, hence, how and why he would 

be harmed by the Board’s application of Section 6139(a)(3.3) of the Parole Code).8  

Without those specific allegations, the Second Supplement merely presented legal 

argument  without  alleging  material  facts  that  would  entitle  him  to  any  relief.  

 

Supplement. 

8  Leonardo  did  not  incorporate  his  Complaint’s  factual  allegations  in  the  Second 

 

 

 

 

4 

Because the Second Supplement did not correct or add facts or add new causes of 

action, it did not constitute an amended complaint.9 

By  April  8,  2022  Order,  this  Court  directed  the  parties  to  file  their 

respective briefs, and declared that it would decide the Preliminary Objections based 

thereon  without  oral  argument.    On  May  10,  2022,  Respondents  filed  their  brief 

supporting the Preliminary Objections.  On June 27, 2022, Leonardo filed his brief 

in opposition to the Preliminary Objections.  

Discussion 

 

Initially, Pennsylvania Rule of Appellate Procedure 1516(b) authorizes 

the filing of preliminary objections to an original  jurisdiction petition for review.  

See Pa.R.A.P. 1516(b). 

 

  

In ruling on preliminary objections, we must accept as true 
all  well-pleaded  material  allegations  in  the  petition  for 
review  [in  the  nature  of  a  complaint],  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 

 

9 “Pennsylvania is a fact-pleading state . . . .”  Chester Upland Sch. Dist. v. Rossi, 275 A.3d 
1117, 1128 (Pa. Cmwlth. 2022).  Accordingly, Pennsylvania Rule of Civil Procedure (Civil Rule) 
1019(a), relating to contents of pleadings, mandates: “The material facts on which a cause of action 
. . . is based shall be stated in a concise and summary form.”  Pa.R.Civ.P. 1019(a). 

Specifically, a petitioner is required “to plead all the facts that he 
must  prove  in  order  to  achieve  recovery  on  the  alleged  cause  of 
action.”  Commonwealth ex rel. Pappert v. TAP Pharm[.] Prod[s.], 
Inc., 868 A.2d 624, 636 (Pa. Cmwlth. 2005).  Legal conclusions and 
general  allegations  of  wrongdoing,  without  the  requisite  specific 
factual averments or support, fail to meet the pleading standard.  See 
Lerner v. Lerner, 954 A.2d 1229, 1235-36 (Pa. Super. 2008).  Under 
the system  of fact  pleading, every act  or performance essential  to 
that end must be set forth in the complaint. 

Chester Upland Sch. Dist., 275 A.3d at 1128.  Civil Rule 1019(a) applies to both complaints and 
amended complaints.  See Bouchon v. Citizen Care, Inc., 176 A.3d 244 (Pa. Super. 2017). 
 

5 

 

  

 

 

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)  (citations  omitted).  

Nonetheless, “[c]ourts reviewing preliminary objections may not only consider the 

facts pled in the complaint, but also any documents or exhibits attached to it.”  Foxe 

v. Pa. Dep’t of Corr., 214 A.3d 308, 310 n.1 (Pa. Cmwlth. 2019) (quoting Allen v. 

Dep’t of Corr., 103 A.3d 365, 369 (Pa. Cmwlth. 2014)). 

Because  it  is  dispositive,  this  Court  will  first  address  Respondents’ 

Second  Preliminary  Objection.    Relative  to  Respondents’  Second  Preliminary 

Objection, Pennsylvania Rule of Civil Procedure 1028(a)(4) authorizes Respondents 

to object to the Complaint on grounds that it fails to state a cause of action upon 

which  relief  may  be  granted  (i.e.,  demurrer).    See  Pa.R.Civ.P.  1028(a)(4).  

Respondents argue that Leonardo failed to state a valid mandamus action because 

his  allegations  “do  not  point  to  a  specific  law  or  policy  that  has  changed  the 

requirement  for  parole  consideration[,]”  Respondents’  Br.  at  7,  and  the  Board’s 

discretion in parole matters is not subject to judicial review. 

Leonardo acknowledged in his Complaint, and the law is well settled: 

The  common  law  writ  of  mandamus  lies to 
compel  an  official’s  performance  of  a 
ministerial act or a mandatory duty.  McGill 
v. P[a.] Dep[’]t of Health, Off[.] of Drug [&] 
Alcohol  Programs,  758  A.2d  268,  270  (Pa. 
Cmwlth.  2000).    ‘The  burden  of  proof  falls 
upon  the  party  seeking  this  extraordinary 

6 

 

 

 

remedy  to  establish  his  legal  right  to  such 
relief.’    Werner  v.  Zazyczny,  .  .  .  681  A.2d 
1331, 1335 ([Pa.] 1996).  Mandamus requires 
‘[1] a clear legal right in the [petitioner], [2] 
a corresponding duty in the [respondent], and 
[3]  a  lack  of  any  other  adequate  and 
appropriate remedy at law.’  Crozer Chester 
Med[.]  C[tr.]  v.  .  .  .  Bureau  of  Workers’ 
Comp[.],  Health  Care  Serv[s.]  Rev[.] 
Div[.], . . .  22  A.3d  189,  193  ([Pa.]  2011) 
(citations  omitted). 
is  not 
available to establish legal rights but only to 
enforce rights that have been established. 

  Mandamus 

Sinkiewicz  v.  Susquehanna  Cnty.  Bd.  of  Comm’rs,  131 
A.3d 541, 546 (Pa. Cmwlth. 2015).  “Mandamus is not 
used to direct the exercise of judgment or discretion of 
an  official  in  a  particular  way.”    Clark  v.  Beard,  918 
A.2d  155,  159  (Pa.  Cmwlth.  2007)  (emphasis  added).  
Further, “[i]n the context of a discretionary act, a court can 
issue such a writ to mandate the exercise of [its] discretion 
in some fashion, but not to require that it be exercised in a 
particular manner.”  Sever v. Dep’t of Env[’t] Res., . . . 514 
A.2d 656, 660 ([Pa. Cmwlth.] 1986) (quoting U.S.  Steel 
Corp.  v.  Papadakos,  .  .  .  437  A.2d  1044,  1046  ([Pa. 
Cmwlth.] 1981)). 

Stodghill v. Pa. Dep’t of Corr., 150 A.3d 547, 552 (Pa. Cmwlth. 2016),  aff’d, 77 

A.3d 182 (Pa. 2018). 

Relevant to this case, the law is well established: “[A] parole eligibility 

date, usually set at the expiration of the prisoner’s minimum sentence, does not vest 

any right to a grant of parole upon reaching that date.”  Weaver v. Pa. Bd. of Prob. 

& Parole, 688 A.2d 766, 770 (Pa. Cmwlth. 1997).   

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. 

Id.  Therefore,  

 

7 

parole is not a right in Pennsylvania, but a matter of grace.  
Commonwealth  v.  Brittingham,  .  .  .  275  A.2d  83  ([Pa.] 
1971); Reider v. P[a.] B[d.] of Prob[.] [&] Parole, . . . 514 
A.2d  967  ([Pa.  Cmwlth.]  1986).    The  Board  has  been 
granted  broad  discretion  in  parole  matters  and  what  the 
Board  decides,  and  why,  being  wholly  a  matter  of  the 
Board’s discretion, is simply not subject to judicial review.  
[Id.]  .  .  .  [at]  971-72  .  .  .  .    It  is  for  the  Board  alone  to 
determine  whether  or  not  a  prisoner  is  sufficiently 
rehabilitated to serve the remainder of his sentence outside 
the confines of prison.  Id.  As a result, decisions to grant 
or deny parole are generally not appealable except to the 
extent  that  a  constitutional  or  statutory  violation  has 
occurred. 

Myers v. Ridge, 712 A.2d 791, 794 (Pa. Cmwlth. 1998).  Thus, although a prisoner 

has no liberty interest in parole, he does have a substantive due process right “in 

making sure the Board followed the minimum duties required by the law.”  Homa v. 

Pa. Bd. of Prob. & Parole, 192 A.3d 329, 334 (Pa. Cmwlth. 2018).  Due process 

challenges are among those that “may be raised in a mandamus action.”  Toland v. 

Pa. Bd. of Prob. & Parole, 263 A.3d 1220, 1233 (Pa. Cmwlth. 2021).   

However,  Leonardo appears  to  argue  that  the  Board  denied  him  due 

process in denying his parole because it focused on the nature of his criminal conduct 

without considering the other factors that weighed in favor of granting him parole.  

See  Complaint  at  6, 8,  11.    Section  6139(a)(2)  of  the  Parole  Code  mandates  that 

“[t]he [B]oard shall consider applications for parole by an offender . . . .”  61 Pa.C.S. 

§ 6139(a)(2).  Section 6139(a)(5) of the Parole Code also specifies that the Board 

must file of record “a brief statement of the reasons” if it denies parole.  61 Pa.C.S. 

§ 6139(a)(5).  According to the allegations in the Complaint, when the Board denied 

Leonardo’s parole, it detailed its reasons for doing so.  See Complaint at 18, 20.  This 

Court has ruled that, because “the Board is specifically given discretion to determine 

whether [a prisoner] poses a risk to society and in the factors it considers relevant 

for  doing  so[,]” Homa,  192 A.3d  334,  “mandamus  cannot  be  used to dispute  the 

 

8 

weight the Board gave to the factors for parole.”  Id. at 332; see also Weaver, 688 

A.2d at 777 (“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.”).   

Because Leonardo did not and cannot sufficiently plead that “the Board 

[failed  to]  follow[]  the  minimum  duties  required  by  the  law”  in  considering  his 

parole factors, Homa, 192 A.3d at 334, he failed to state a viable mandamus claim 

against Respondents on the basis that the Board violated his due process rights. 

Next, notwithstanding Respondents’ claim that Leonardo’s allegations 

“do not point to a specific law or policy that has changed the requirement for parole 

consideration[,]”  Respondents’  Br.  at  7,  based  on  this  Court’s  review  of  the 

Complaint,  and  the  Board’s  January  28,  2022  letter  attached  to  the  Complaint, 

Leonardo challenges the Board’s application of the November 25, 2020 amendment 

to Section 6139(a)(3.3) of the Parole Code, which delays parole consideration for 

three years, because it violated the constitutional prohibition against ex post facto 

laws by prolonging his incarceration.  See Complaint at 10-11, 22.   

“Where  .  .  .  the  actions  of  the  [B]oard  taken  pursuant  to  changed 

statutory requirements are being challenged, an action for mandamus remains viable 

as  a  means  for  examining  whether  statutory  requirements  have  been  altered  in  a 

manner that violates the ex post facto clause.”  Coady v. Vaughn, 770 A.2d 287, 290 

(Pa. 2001)10 (footnote omitted); see also Toland, 263 A.3d at 1233 (Ex post facto 

claims “may be raised in a mandamus action.”). 

Section  9  of  Article  I  of  the  United  States  [(U.S.)] 
Constitution  provides  that  “[n]o  .  .  .  ex  post  facto  [l]aw 
shall be passed.”  U.S. CONST. [a]rt. I, § 9.  Section 17 of 
article I of the Pennsylvania Constitution states that “[n]o 

10 Opinion after certified question answered, 251 F.3d 480 (3d Cir. 2001). 

 

 

9 

ex post facto law . . . shall be passed.”  PA. CONST. art. I, § 
17. 

Toland, 263 A.3d at 1224 n.3.  The Toland Court explained: 

The  ex  post  facto  prohibition  bars  enactments  by  the 
[s]tates  “which,  by  retroactive  operation,  increase  the 
punishment for a crime after its commission.”  Garner [v. 
Jones], 529 U.S. [244,] 249 . . . [(2000)] (citing Collins v. 
Youngblood, 497 U.S. 37, 42 . . . (1990)).  “Retroactive 
changes  in  laws  governing  parole  of  prisoners,  in  some 
instances  may  be  violative  of  this  precept.”    Id.  (citing 
Weaver v. Graham, 450 U.S. 24, 32 . . . (1981); [Cal. Dep’t 
of Corr. v.] Morales, 514 U.S. [499,] 508-09 . . . [(1995)]).  
Our  [Pennsylvania]  Supreme  Court  has  recognized  the 
potential  of  an  ex  post  facto  violation  by  a  change  in  a 
parole 
[U.S.] 
Constitutions.    Coady,  770  A.2d  at  290.    “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.’”    Cimaszewski  [v.  Pa.  Bd.  of 
Prob.  &  Parole],  868  A.2d  [416,]  423  [(Pa.  2005)] 
(quoting Weaver, 450 U.S. at 29 . . . ).   

the  Pennsylvania  and 

law  under 

Id. at 1235 (emphasis added). 

Until November 25, 2020, in all cases, Section 6139(a)(3) of the Parole 

Code declared that “the [B]oard shall not be required to consider nor dispose of an 

application by an offender . . . where a parole decision has been issued by the [B]oard 

on that case within one year of the date of the current application for parole.”  61 

Pa.C.S.  §  6139(a)(3).    However,  effective  November  25,  2020,  the  General 

Assembly added Section 6139(a)(3.3) to the Parole Code, which states, in pertinent 

part: 

[I]f a parole decision has been issued by the [B]oard within 
three  years  of  the  date  of  the  current  application,  the 
[B]oard shall not be required to consider nor dispose of an 

 

10 

application by an offender . . . sentenced under any of the 
following provisions of [the Crimes Code]:[11] 

Section  3121  [of  the  Crimes  Code,  18  Pa.C.S.  §  3121] 
(relating to rape). 

. . . .  

. . . . 

Section  3123  [of  the  Crimes  Code,  18  Pa.C.S.  §  3123] 
(relating to involuntary deviate sexual intercourse). 

61 Pa.C.S. § 6139(a)(3.3).   

Because  Leonardo  was  convicted  of  rape  and  involuntary  deviate 

sexual  intercourse  before  the  General  Assembly  enacted  the  2020  Parole  Code 

amendment,  the  Board’s  declaration  that  it  would  not  consider  his  January  2021 

parole application until three years had elapsed from Leonardo’s last parole denial 

constituted retroactive application of Section 6139(a)(3.3) of the Parole Code.  “We 

must,  therefore,  examine  whether  [Leonardo]  has  sufficiently  pled  that  the 

application of the [2020 a]mendment has disadvantaged [him] such that it violates 

the ex post facto prohibition.”  Toland, 263 A.3d at 1235. 

 

 

Leonardo’s  claimed  disadvantage  is  that  the  Board’s  application  of 

Section 6139(a)(3.3)  of  the  Parole  Code  extended  his  incarceration.    Indeed,  “[a] 

state law violates the ex post facto clause if it was adopted after the complaining 

party committed the criminal acts and ‘inflicts a greater punishment than the law 

annexed to the crime, when committed.’”  Sherwood v. Pa. Dep’t of Corr., 268 A.3d 

528, 548-49 (Pa. Cmwlth. 2021) (quoting Commonwealth v. Wall, 867 A.2d 578, 

580 (Pa. Super. 2005)).  However, that is not the case here.   

Like  Section  6139(a)(3.1)  of  the  Parole  Code,  61  Pa.C.S.  § 

6139(a)(3.1), Section 6139(a)(3.3)(ii) of the Parole Code warns that the three-year 

11 18 Pa.C.S. §§ 101-9546. 

 

 

11 

consideration postponement “under [Section 6139(a)(3.3)] of the Parole Code shall 

[not] be interpreted as granting a right to be paroled to any person[.]”  61 Pa.C.S. § 

6139(a)(3.3)(ii).    Therefore,  Leonardo  had  no  guaranteed  right  to  be  paroled.  

Moreover, although a prisoner’s “minimum sentence [] sets the time after which he 

is  eligible  to  serve  the  remainder  of  his  sentence  on  parole[,]”  his  “actual 

sentence . . . is his maximum sentence[.]”  Hudson v. Pa. Bd. of Prob. & Parole, 204 

A.3d 392, 396 (Pa. 2019) (emphasis added).  “[T]he prisoner on parole is still in the 

legal custody of the state . . . , and is under the control of the warden and of other 

agents  of  the  Commonwealth  until  expiration  of  the  [maximum]  term  of  his 

sentence.”  Id. (quoting Brittingham, 275 A.2d at 85).  “A grant of parole does not 

eliminate  a  prisoner’s  sentence,  but  instead,  the  prisoner  continues  to  serve  his 

sentence . . . .”  Weaver, 688 A.2d at 769.  Correspondingly, denial of parole does 

not extend a prisoner’s sentence, but requires him to continue to serve his maximum 

sentence.  Therefore, in denying Leonardo’s parole, or delaying its consideration of 

his parole application, the Board did not inflict a new or greater punishment than he 

was originally given.    

In Morales, the prisoner challenged, on ex post facto grounds, a statute 

that similarly extended the period between parole considerations from one to three 

years for prisoners convicted of the most serious offenses.  In reversing the lower 

court’s  determination  that  the  change  violated  the  ex  post  facto  clause,  the  U.S. 

Supreme  Court  observed:  “The  amendment  []  left  unchanged  the  substantive 

formula for securing any reductions to this sentencing range. . . .  The amendment 

had no effect on the standards for fixing a prisoner’s initial date of ‘eligibility’ for 

parole [(i.e., the date on which he could first be considered for parole)], . . . or for 

determining his ‘suitability’ for parole and setting his release date[.]”  Morales, 514 

U.S. at 507.   

 

12 

Likewise,  here,  the  Board’s  postponement  of  Leonardo’s  parole 

consideration pursuant to Section 6139(a)(3.3) of the Parole Code “had no effect on 

the  standards  for  fixing  [Leonardo’s  minimum  sentence  date],[12]  .  .  .  or  for 

determining his ‘suitability’ for parole and setting his [maximum sentence] release 

date[.]”  Morales, 514 U.S. at 507.  In addition, as the Complaint reflects, the Board’s 

conclusions that Leonardo should not be paroled were based on its observations that 

he posed a risk to the community, he lacked motivation for success, he minimized 

and/or  denied  the  nature  of  his  offenses,  and  he  did  not  accept  responsibility  or 

demonstrate remorse for his offenses.  See Complaint at 18, 20.  In light of those 

circumstances, the Board did not extend Leonardo’s incarceration, but required him 

to continue to serve the term the sentencing court originally imposed pending the 

Board’s next review.   

Because  Leonardo  did  not  and  cannot  sufficiently  plead  that  the 

Board’s application of the November 25, 2020 amendment to Section 6139(a)(3.3) 

of  the  Parole  Code  inflicted  a  new  or  greater  punishment  by  prolonging  his 

incarceration, he failed to state a viable mandamus claim against Respondents on the 

basis that the Parole Code’s “statutory requirements have been altered in a manner 

that violates the ex post facto clause.”  Coady, 770 A.2d at 290.  Moreover, even if 

this Court determined that Leonardo was entitled to mandamus relief, because the 

Court cannot order the Board to exercise its discretion in a particular manner,  see 

Stodghill, this Court cannot, as Leonardo requests, order the Board to grant him a 

parole date.13  See Complaint at 11. 

 

12 “Under Pennsylvania law, the minimum term imposed on a prison sentence [] sets the 
date prior to which a prisoner may not be paroled.”  Rogers v. Pa. Bd. of Prob. & Parole, 724 A.2d 
319,  321  n.2  (Pa.  1999)  (citations  omitted).    A  prisoner  may  apply  to  the  Board  for  parole 
consideration at the expiration of his minimum term, see id., which is what Leonardo did in this 
case.  See Complaint at 7. 

13 In light of this Court’s disposition of Respondents’ Second Preliminary Objection, this 

Court need not address Respondents’ First Preliminary Objection. 

 

13 

Conclusion 

Accepting  all  of  the  pleaded  facts  as  true,  as  this  Court  must, 

Leonardo’s  Complaint  failed  to  state  a  mandamus  claim  for  which  relief  may  be 

granted.  Thus, this Court sustains Respondents’ Second Preliminary Objection and 

dismisses Leonardo’s Complaint. 

 
  

 
 

 
 

_________________________________ 
ANNE E. COVEY, Judge 

14 

   

 

 

IN THE COMMONWEALTH COURT OF PENNSYLVANIA 

 

 
 
 

 
 
v. 
 

tephen L. Leonardo, 

Petitioner 
 
 
 

 
 
 
 
 
 
 
 
 
Pa. Board of Probation and Parole, 
 
Josh Shapiro, Pennsylvania Attorney   
 
General, Office of Chief Counsel,  
 
Pennsylvania Department of  
 
Corrections,  
 
 
 
 

 
 
Respondents 

: 
: 
: 
: 
: 
: 
: 
: 
: 
:  No. 156 M.D. 2021 
: 

 

O R D E R 
 

AND  NOW,  this  17th  day  of  March,  2023,  the  Pennsylvania  Parole 

Board’s,  Pennsylvania  Attorney  General  Josh  Shapiro’s,  and  the  Pennsylvania 

Department of Corrections Office of Chief Counsel’s second preliminary objection 

to Stephen L. Leonardo’s pro se petition for review in the nature of a complaint in 

mandamus (Complaint) is SUSTAINED, and the Complaint is DISMISSED. 

 
  

 
 

 
 

_________________________________ 
ANNE E. COVEY, Judge 

   

  S