Barry Harmer, Petitioner
v.
Pennsylvania Board of Probation and Parole, Respondent
No. 2358 C.D. 2012
COMMONWEALTH COURT OF PENNSYLVANIA
Submitted: December 11, 2013
FILED: January 7, 2014
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
BY JUDGE SIMPSON
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
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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
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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 reparole. 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.
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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
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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 recommitted Baldelli to an SCI rather than diverting him to a CCC on the ground that such a diversion would pose an undue risk to public safety. After the Board denied Baldelli's administrative appeal, Baldelli appealed to this Court.
Before this Court, Baldelli argued the Board abused its discretion in recommitting him to an SCI rather than diverting him to a CCC on the ground he posed an undue risk to public safety. He asserted the record lacked evidence to show his diversion to a CCC constituted a threat to public safety where the record revealed he merely consumed drugs while on parole and did not engage in any dangerous behavior.
Rejecting this argument, we first observed that this Court affords significant deference to the Board in parole matters based on the Board's highly specialized expertise in this area. Further, we explained that in reviewing the Board's discretionary decisions, we would only conclude that the Board made an arbitrary, capricious or unreasonable determination where the record lacked substantial evidence to support the Board's determination. We then explained:
Former Section 6138(c)(6) of the Parole Code stated, 'The [B]oard shall divert technical parole violators from confinement in a State correctional institution unless the parolee's diversion poses an undue risk to public safety.' Former 61 Pa. C.S. §6138(c)(6) (emphasis added). Thus,
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pursuant to this Section the Board retained discretion not to divert technical parole violators from SCIs where such diversions posed an undue safety risk. As a result, the Board's decision regarding diversion necessarily contains a discretionary component. See Dickerson v. Pa. Dep't of Prob. & Parole (Pa. Cmwlth., No. 947 M.D. 2010, filed July 12, 2011) (unreported) (explaining that 6138(c)(6) of the Parole Code vests the Board with discretion not to divert technical parole violators from SCIs where such diversions pose an undue safety risk). ...
In its recommitment order here, the Board stated: 'The Board finds that diverting you from confinement at this time poses an undue risk to public safety.' In light of Baldelli's problematic history while on parole, we discern no abuse of discretion in the Board's finding that diversion from an SCI posed an undue risk to public safety. ...
In sum, in the period after his first release on parole, Baldelli admitted to multiple technical parole violations, including possession of a weapon. Further, after the Board reparoled Baldelli to a CCC, he tested positive for drugs and attempted to submit a falsified urine specimen, leading the Board to characterize his adjustment after his release on reparole as 'poor.' Additionally, after the Board placed Baldelli into an inpatient drug treatment program, he admitted to using synthetic marijuana and was discharged from the program prior to successful completion. As a result, the Board decided to recommit Baldelli to an SCI rather than divert him to a CCC.
In light of the above circumstances, we discern no abuse of discretion in the Board's decision to recommit Baldelli to an SCI, rather than re-releasing him to a CCC, based on his most recent admitted technical parole violations. Given Baldelli's history of parole failure, we cannot say the Board abused its discretion in determining that diverting Baldelli from an SCI would pose an undue risk to public safety. Indeed, the record of this history belies Baldelli's claim that the Board lacked evidence supporting its determination that Baldelli posed an undue risk to public safety.
Baldelli, 76 A.3d at 96-97 (footnotes and record citations omitted).
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As in Baldelli, in its recommitment order, the Board here made a finding that, "DIVERTING [HARMER] FROM CONFINEMENT AT THIS TIME POSES AN UNDUE RISK TO PUBLIC SAFETY." Certified Record (C.R.) at 64. Also, similar to the Board's decision in Baldelli, the Board's decision here states: ...
