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Harmer v. Pennsylvania Board of Probation and Parole

Commonwealth Court of Pennsylvania

January 7, 2014

Barry Harmer, Petitioner
v.
Pennsylvania Board of Probation and Parole, Respondent

Submitted: December 11, 2013

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge

OPINION

SIMPSON JUDGE

Barry Harmer (Harmer), representing himself, petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) that recommitted him to a state correctional institution (SCI) to serve six months' backtime based on his admission to three technical parole violations. Primarily, Harmer challenges the Board's decision to recommit him to an SCI rather than diverting him to a community corrections center (CCC) as required by statute. See former Section 6138(c)(6) of the Prisons and Parole Code, 61 Pa. C.S. §6138(c)(6)[1](Parole Code). Because the record amply supports the Board's discretionary determination that diverting Harmer to a CCC poses an undue risk to public safety, we affirm.

In 1996, Harmer received a sentence of 5 to 27 years imprisonment based on his guilty pleas to theft and multiple counts of burglary. Pursuant to that sentence, Harmer's minimum sentence date was October 5, 2000 and his maximum sentence date was January 4, 2023.

The Board granted Harmer parole in 2000. At that time, the Board released Harmer to a New Jersey detainer.

About six months later, the Board declared Harmer delinquent on parole. The Board subsequently recommitted Harmer as a technical parole violator based on his admission to four technical parole violations, which included using drugs, leaving the district without permission, failing to report per written instructions and failing to attend an outpatient drug treatment program.

In 2003, the Board re-paroled Harmer to a CCC. About three years later, the Board again declared Harmer delinquent on parole. Thereafter, the Board recommitted Harmer as a technical parole violator.

In early 2007, the Board again granted Harmer re-parole to a residential drug and alcohol treatment program. About two months later, the Board again declared Harmer delinquent. The Board subsequently recommitted Harmer as a technical parole violator based on his admission to two technical parole violations.

In 2008 and 2009, the Board issued decisions denying Harmer re-parole. Thereafter, in 2010, the Board once again granted Harmer re-parole to an inpatient drug and alcohol treatment program.

In 2012, the Board again declared Harmer delinquent. Shortly thereafter, police arrested Harmer on a Board warrant. The Board subsequently charged Harmer with three technical parole violations. Harmer executed a waiver of his right to a preliminary hearing, a violation hearing and counsel at those hearings. Additionally, he admitted to the charged violations.

In August 2012, the Board recommitted Harmer to an SCI as a technical parole violator to serve six months' back time. The Board found that diverting Harmer from confinement at that time posed an undue risk to public safety.

Harmer filed a petition for administrative relief challenging the Board's determination that he posed an undue risk to public safety, and, therefore, could not be placed in a CCC. The Board denied Harmer's administrative appeal. Harmer filed a petition for review with this Court.

On appeal, [2] Harmer first contends the Board erred in determining he posed an undue risk to public safety so as to warrant his recommitment to an SCI rather than diversion to a CCC. He argues this is a case of first impression in that it concerns the meaning of the ambiguous phrase "undue risk to public safety" set forth in former Section 6138(c)(6) of the Parole Code. Pet'r's Br. at 7. Here, Harmer asserts the Board relied on mere speculation in deeming him an undue risk to public safety. He further maintains that, because the phrase "undue risk to public safety" is ambiguous, the "rule of lenity" should apply and the ambiguity of that phrase should be construed in his favor.

Harmer also asserts the Board made its determination that he posed an undue risk to public safety after the violation hearing. He contends the Board's finding in this regard is arbitrary and capricious because no risk assessment was performed on him until after the Board recommitted him.

At the outset, we note, contrary to Harmer's assertions, this is not a case of first impression. Recently, we were asked to decide whether the Board abused its discretion in recommitting a former parolee to an SCI rather than diverting him to a CCC pursuant to former Section 6138(c)(6) of the Parole Code. See Baldelli v. Pa. Bd. of Prob. & Parole, 76 A.3d 92 (Pa. Cmwlth. 2013). In that case, after a prior parole failure consisting of several technical parole violations, the Board re-paroled the parolee, Brett Baldelli (Baldelli), to a CCC and ultimately placed him in an inpatient drug treatment program. While at the treatment facility, Baldelli tested positive for drug use and was discharged for failing to successfully complete the program. As a result, the Board charged Baldelli with technical parole violations. Baldelli admitted to the violations and waived his rights to a hearing and counsel. Based on his admissions, the Board ...


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