Background
Jeffrey Marten was convicted of rape in 1999 and sentenced to 18 to 36 years in a state correctional institution. The Pennsylvania Parole Board (Board) granted Marten parole on October 19, 2020—just weeks before Governor Wolf signed Act 124 of 2020 into law on November 25, 2020. That Act added Section 6139(a)(3.3) to the Prisons and Parole Code, extending the Board’s mandatory review cycle from one year to three years for offenders convicted of murder, kidnapping, or rape. The enabling legislation limited the extended cycle to two categories: individuals convicted of those offenses before Act 124’s effective date who “remain under the jurisdiction of the Department of Corrections,” and individuals who commit such offenses on or after November 25, 2020.
Marten’s parole proved short-lived. He was recommitted as a technical parole violator in October 2022 following new indecent exposure charges, and then as a convicted parole violator in October 2023. The Board denied his parole application in April 2024. In February 2025, Marten sent the Board an inquiry asking a pointed threshold question: because he was under Board supervision—not DOC custody—when Act 124 took effect, did the three-year waiting period actually apply to him? The Board’s Records and Administration Office responded curtly that he could not file a parole application within three years of its April 2024 decision.
Marten filed an original-jurisdiction petition for review in the nature of mandamus in the Commonwealth Court, seeking an order compelling the Board to accept and consider a parole application on the normal one-year cycle. He followed with a Motion for Peremptory Judgment. The Board countered with an Application for Summary Relief, arguing among other things that it had no duty to act because Marten had filed no parole application.
The Court’s Holding
Judge Wojcik, writing for a panel of McCullough, Wojcik, and Wolf, JJ., granted the Board’s Application for Summary Relief and dismissed Marten’s petition—but entirely on a threshold procedural ground that left the Act 124 statutory question undecided. The court held that mandamus will not lie where the inmate has not yet filed a parole application. Citing Kelly v. Pennsylvania Board of Probation and Parole, 686 A.2d 883, 885 (Pa. Cmwlth. 1996), the court reaffirmed that the Board’s statutory duty to consider an inmate arises only upon the filing of an application. Both Section 6139(a)(2) of the Parole Code and the Board’s own regulations at 37 Pa. Code §§63.1(a)–(c) specifically condition the Board’s duty to act on receipt of an application. Without a duty, there is no basis for mandamus.
Marten’s own filings doomed his petition. His February 2025 communication to the Board posed the question hypothetically—“if I elect to submit an application for parole one year after my April 2024 [Board] decision, would my application be subject to Section 6139(a)(3.3)?”—and explicitly acknowledged that he had not yet filed. The court found that language controlling: because Marten had established neither “a right to a decision regarding his parole nor a duty on the part of the Board to issue one,” Kelly, 686 A.2d at 885, neither his mandamus petition nor his motion for peremptory judgment could succeed.
The court expressly declined to decide whether Section 6139(a)(3.3) applies to individuals like Marten—those who were convicted of qualifying offenses before Act 124’s effective date but who, at that moment, were on parole under Board jurisdiction rather than incarcerated under DOC jurisdiction. That interpretive question, which turns on the phrase “remain under the jurisdiction of the Department of Corrections” in Act 124’s enabling legislation, remains open.
Key Takeaways
- A mandamus petition seeking to compel the Pennsylvania Parole Board to consider a parole application is premature unless the inmate has actually filed an application; a threshold inquiry to the Board, no matter how well-reasoned, does not trigger the Board’s statutory duty under 61 Pa. C.S. §6139(a)(2).
- The court left unresolved whether Act 124 of 2020’s three-year review cycle under 61 Pa. C.S. §6139(a)(3.3) applies to offenders who were convicted of murder, kidnapping, or rape before November 25, 2020 but were on parole—under Board jurisdiction, not DOC jurisdiction—when the Act took effect. That question is ripe for future litigation.
- Practitioners representing inmates who dispute the Board’s application of the three-year waiting period should file an actual parole application first; only after the Board acts on or refuses to act on a duly filed application does a cognizable mandamus claim ripen.
- The decision reaffirms Kelly v. Pennsylvania Board of Probation and Parole, 686 A.2d 883 (Pa. Cmwlth. 1996), as the controlling framework: both the Board’s enabling statute and its regulations make the duty to consider parole conditional on submission of an application.
Why It Matters
Marten v. Pennsylvania Parole Board is notable as much for what it declined to decide as for what it held. Act 124 of 2020 was designed to ensure that inmates convicted of the most serious violent and sexual offenses face longer intervals between mandatory parole reviews. But its enabling language—confining the three-year rule to those who “remain under the jurisdiction of the Department of Corrections” at the law’s effective date—created potential ambiguity for a narrow class of offenders who happened to be on parole when Act 124 took effect in November 2020. The Commonwealth Court’s deliberate non-answer leaves that interpretive question open for a future petitioner who has exhausted the administrative process, and it will matter to any inmate in similar circumstances who argues the one-year cycle still governs them.
For Pennsylvania parole counsel, the practical lesson is clear: the path to challenging the Board’s application of Section 6139(a)(3.3) runs through the Board itself. File the application, await the Board’s response, and only then seek judicial review. Bypassing that sequence—even with a compelling statutory argument in hand—will result in dismissal at the threshold for failure to establish a duty that triggers mandamus relief.