APPELLATE LAW – CRIMINAL
Prior Bad Acts
Harmer v. Pennsylvania Board of Probation and Parole, PICS Case No. 14-0026 (Pa. Commonw. Jan. 7, 2014) Simpson, J. (18 pages).
Petitioner Barry Harmer petitioned for review of an order of the Pennsylvania Board of Probation and Parole that recommitted him to a state correctional institution to serve six months’ backtime based on his admission to three technical parole violations. The Board’s decision is affirmed.
In 1996, Harmer received a sentence of five to 27 years’ imprisonment based on his guilty pleas to theft and multiple counts of burglary. The Board granted Harmer parole in 2000 to a New Jersey detainer. Six months later, the Board declared Harmer delinquent on parole and subsequently recommitted him as a technical parole violator based on his admission to four violations, including drugs, leaving the district without permission, failing to report and failing to attend outpatient drug treatment. Harmer was re-paroled in 2000 to a community corrections center; three years later he was again declared delinquent and recommitted as a technical parole violator. In 2003, 2007 and 2010, Harmer was paroled only to be declared delinquent for violations. In August 2012, the Board recommitted Harmer to an institution for six months due to parole violations ruling that diverting Harmer to a confinement center placed an undue risk to public safety.
Harmer challenged the Board’s decision to recommit him to an institution rather than diverting him to a center as required by statute. The Board denied the administrative appeal. Harmer filed a petition for review, stating the Board erred in determining he was an undue risk to public safety as the phrase was ambiguous and based on mere speculation.
The court affirmed the Board’s decision to recommit to an institution pursuant to its discretionary determination that diverting Harmer to a center posed an undue risk to public safety. As with prior rulings on this issue, the court deferred to the Board’s decision based on its specialized expertise and considered overturning only where the Board made an “arbitrary, capricious or unreasonable determination where the record lacked substantial evidence to support the Board’s determination.” In light of Harmer’s numerous parole violations, the record substantiated the Board’s decision to commit Harmer to an institution rather than a center. Finally, the language of the Parole Code was not ambiguous as it related to “undue risk” provisions.