Harmer v. Pennsylvania Board of Probation & Parole

DISSENTING OPINION BY

President Judge PELLEGRINI.

At issue in this case is whether the Pennsylvania Board of Probation and Parole (Board) complied with the statutory mandate under former Section 6138(c)(6) of the Parole Code providing to divert technical parole violators from confinement in a State correctional institution rather to confinement in a Community Correction Facility or Community Correction Center (collectively “CCC”) “unless the parolee’s diversion poses an undue risk to public safety.”1

The majority holds that Harmer’s long history of parole failure equates to being an undue risk to public safety so he must serve time in a State correctional institution rather than serve his time in a CCC. By making that false equivalency, the ma*302jority frustrates the intent of the General Assembly to divert inmates from expensive State correctional institutions to less expensive CCCs and alleviate the need to build and operate new prisons.

There is no dispute that the record amply supports the Board’s finding that Barry Harmer (Harmer) has a history of parole failure having been released on parole four times. However, parole failure only means that a person is not a good candidate for parole, which is a different determination than whether he would be an undue threat to public safety if he served his time in a CCC. Moreover, each time Harmer had been declared delinquent, it was for committing technical parole violations that did not involve any threat to the public, i.e., using drugs, leaving the district without permission, failing to report as instructed on multiple occasions, and twice failing to successfully complete required drug treatment programs. No facts exist to indicate that he was a risk, let alone an undue risk to public safety if he served his time in a CCC.

The majority seems to recognize that parole failure alone is insufficient by scouring through the record to find a notation on a Board supplement form that said:

UPON COMPLETION OF INPATIENT DRUG AND ALCOHOL ASSESSMENT [CONFIRM] THE APPROPRIATENESS OF ANY HOME PLAN SUBMISSION WITH [HARMER’S] WIFE, YOU’LL NOTE IN THE LAST SUMMARIZATION REPORT [HARMER] PARTIALLY BLAMING HER FOR HIS TROUBLE. THE OVA [ (OFFICE OF THE VICTIM ADVOCATE) ] INPUT CONCERNING HIS ADDICTION AND REPORTED DOMESTIC ABUSE IS COMPELLING.

(Certified Record at 27).

First, unlike in Baldelli v. Pennsylvania Board of Probation and Parole, 76 A.3d 92 (Pa.Cmwlth.2018), where one of the technical violations was for the admitted possession of a weapon, this report was not the basis for the revocation of Harmer’s parole, he did not admit to this violation, and the Board did not advance it in its brief as one of the reasons that he is an undue risk to public safety. Second, it is not for this Court to scour through the record to come up with its own reason to support the Board’s decision based on a “reported,” i. e., unproven, domestic abuse claim to which Harmer had no opportunity to respond. Simply, it violates our role as a reviewing court, not to mention due process.

Because none of the reasons given by the Board establish that Harmer is an undue risk to public safety if he is placed in a CCC, I respectfully dissent.

. See former Section 6138(c)(6) of the Prisons and Parole Code, 61 Pa.C.S. § 6138(c)(6) (Parole Code).