Harmer v. Pennsylvania Board of Probation & Parole
83 A.3d 293
Pa. Commw. Ct.2014Background
- Harmer, serving a 5–27 year sentence (min. 10/5/2000; max. 1/4/2023), was paroled/re-paroled four times between 2000 and 2012 and repeatedly declared delinquent.
- During parole periods Harmer accumulated ten technical violations (drug use, leaving district, failure to report, curfew/residence violations, twice failing drug treatment).
- In 2012 Harmer admitted three technical violations, waived counsel and hearings, and was recommitted to a State Correctional Institution (SCI) for six months’ backtime.
- The Board expressly found that diverting Harmer to a community corrections center (CCC) would “pose an undue risk to public safety,” and recommitted him to an SCI instead of a CCC under former 61 Pa.C.S. § 6138(c)(6).
- Harmer petitioned for administrative relief and then judicial review, arguing (1) the phrase “undue risk to public safety” is ambiguous and should be construed in his favor (rule of lenity), (2) the Board relied on speculation and made the finding after the hearing, and (3) estoppel based on alleged promises of CCC placement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board abused its discretion by recommitting Harmer to an SCI rather than diverting him to a CCC because diversion would pose an "undue risk to public safety." | Harmer: Board relied on speculation; parole failures alone don’t show an undue risk; diversion should have been ordered. | Board: Harmer’s persistent pattern of parole failure, admissions to multiple technical violations, prior unsuccessful CCC/treatment placements justify finding of undue risk. | Court: Affirmed; record contains substantial evidence (repeated parole failures, treatment discharge, domestic-abuse notation) supporting the Board’s discretionary finding of undue risk. |
| Whether the phrase "undue risk to public safety" in former § 6138(c)(6) is ambiguous and subject to rule of lenity. | Harmer: Phrase is ambiguous; apply rule of lenity and construe in petitioner’s favor. | Board: Language is plain; courts should apply ordinary meaning; rule of lenity applies only when statute is ambiguous. | Court: Phrase is plain; no ambiguity; rule of lenity inapplicable. |
| Whether the Board’s finding was untimely or procedurally improper because no risk assessment was performed until after the hearing. | Harmer: Board made the undue-risk finding post-hearing without prior assessment; arbitrary. | Board: Harmer waived hearing and counsel; procedural rights preserved by waiver; Board’s discretion unaffected. | Court: Rejected Harmer’s claim; waiver bars procedural objection and Board’s timing was not improper. |
| Whether the Board is estopped from refusing CCC placement due to an alleged promise by a Board representative. | Harmer: He admitted violations relying on a promise of CCC placement from a Board representative. | Board: Harmer signed an uncoerced written waiver stating no promise was made and had 10 days to withdraw admissions but did not. | Court: Estoppel fails; written waiver and failure to withdraw admissions defeat claim. |
Key Cases Cited
- Baldelli v. Pa. Bd. of Prob. & Parole, 76 A.3d 92 (Pa. Cmwlth. 2013) (upholding Board discretion to deny CCC diversion where parolee showed repeated parole failures and treatment noncompliance)
- Richards v. Pa. Bd. of Prob. & Parole, 20 A.3d 596 (Pa. Cmwlth. 2011) (discussing application of rule of lenity and construction of ambiguous penal provisions)
- McKenzie v. Pa. Bd. of Prob. & Parole, 963 A.2d 616 (Pa. Cmwlth. 2009) (upholding uncounseled written waivers/admissions despite claims of promised diversion)
- Prebella v. Pa. Bd. of Prob. & Parole, 942 A.2d 257 (Pa. Cmwlth. 2008) (similar treatment of waiver-based admissions and challenge to Board promises)