Miller v. PA BOARD OF PROBATION AND PAROLE

• Decision Date: 28 September 2001
• Citation: 784 A.2d 246
• Parties: Larry R. MILLER, Petitioner, v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.
• Court: Pennsylvania Commonwealth Court

784 A.2d 246

Larry R. MILLER, Petitioner, v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.

Commonwealth Court of Pennsylvania.

Submitted on Briefs August 3, 2001.

Decided September 28, 2001.

Ellen K. Barry, Carlisle, for petitioner.

Robert A. Greevy, Harrisburg, for respondent.

Before PELLEGRINI, Judge, FRIEDMAN, Judge, and FLAHERTY, Senior Judge.

FLAHERTY, Senior Judge.

Larry R. Miller (Petitioner) petitions for a review of the Pennsylvania Board of Probation and Parole (Board) denial of his administrative appeal objecting to the decision to revoke Petitioner's parole for a technical violation. We vacate and remand.

Petitioner was paroled with a special condition that he successfully complete a sex offender program (Program). During the intake process of the Program on August 16, 2000, Petitioner was advised that he would need to undergo a polygraph exam regarding the consistency/veracity of some of his statements. The cost of the exam was $250 and this cost must be paid in full before the exam. On October 16, 2000, Petitioner was asked to sign a contract to pay for the exam but he refused because he did not have the money. Consequently, Petitioner was "unsuccessfully discharged" from, i.e., did not successfully complete, the Program. The Board concluded that he committed a technical violation of his parole and recommitted him for twelve months.

On appeal, Petitioner raises two arguments. First, he contends that his inability to pay $250 for the polygraph is of no fault of his own but rather he simply could not afford it. To the contrary, the Board asserts that Petitioner did not make a good faith effort to remain in the Program because he made no effort to arrange to make payments for the test. Second, Petitioner argues that his due process rights were violated when his parole was revoked because of his inability to pay and the Board's failure to inquire whether his inability to pay was willful. The Board states, however, that it was not Petitioner's failure to pay per se, which resulted in his discharge. Instead, it was Petitioner's failure to make any effort or arrangements to build up a fund toward payment of the test during the two months that he was in the Program.¹

We begin our analysis by properly framing the issue before us.² A staff member of the Program testified at the revocation hearing that if Petitioner had paid for and taken the polygraph, then he would not have been unsuccessfully discharged from the Program. C.R. 35. Regardless of whether payment is made by lump sum or installments, payment must be in full before the examination is given. C.R. 41. Based on this testimony, it becomes clear that Petitioner's parole violation is not about his commitment to treatment but about his ability to pay for required treatment.³ The issue is whether his inability to pay can be grounds for his parole revocation as a technical violator.

In Hudak v. Pennsylvania Board of Probation and Parole, 757 A.2d 439, 442 (Pa.Cmwlth.2000), we held that "where the Board has fashioned a condition of parole over which the petitioner does not have control, the Board must show that the petitioner was somewhat at fault in order to prove a violation." For example, a parolee was without fault when he was unsuccessfully discharged from a program for purely medical reasons. Id. at 440-41. In formulating this opinion, this Court stated:

We also find instructive in this case Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). The question raised in Bearden was whether it was unconstitutional to revoke an indigent defendant's probation for failure to pay a fine and restitution. The United State Supreme Court concluded that automatically revoking probation because a petitioner could not pay a fine, without determining that the petitioner had not made sufficient bona fide efforts to pay or that adequate alternative forms of punishment did not exist was in error. An examination of fault must be made before probation is revoked. We recognize that there is a difference between probation for wrongdoing and parole after serving a portion of a prison sentence, but the requirement of a showing of fault on the part of the petitioner in a violation of either probation or parole is similar.

Hudak, 757 A.2d at 441 (footnote omitted). In Bearden, the United States Supreme Court held that in revocation proceedings, the tribunal must inquire into reasons for the failure to pay.

If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternate measures of punishment other than imprisonment. Only if alternate measures are not adequate to meet the State's interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine. Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment.

Bearden, 461 U.S. at 672, 103 S.Ct. 2064 (footnote omitted) (emphasis added). The Pennsylvania Superior Court has interpreted this holding as requiring the revocation court to inquire into the reasons for a party's failure to pay and to make findings pertaining to the willfulness of the party's omission. Commonwealth v. Eggers, 742 A.2d 174, 175-76 (Pa.Super.1999) (requiring the court to inquire into a person's ability to pay restitution prior to revocation of probation based on failure to pay same).

In Lawson v. Pennsylvania Board of Probation and Parole, 105 Pa.Cmwlth. 427, 524 A.2d 1053 (1987), a parolee appealed his violation of a special condition of his parole which required him to pay fines, costs and restitution imposed by the trial court as part of his sentence. We stated that in order to revoke parole for failing to pay fines, costs and restitution, the Board must take into consideration and make a reasonable allowance for parolee's individual situation. Id. 432, 524 A.2d 1053. This Court considered the parolee's alternative defense of indigency and concluded that such a defense is viable but the burden of proof is upon the parolee. Id. at 433, 524 A.2d 1053 quoting Commonwealth ex rel. Benedict v. Cliff, 451 Pa. 427, 434, 304 A.2d 158, 161 (1973) ("[W]e hold that the appellants must be given the opportunity to establish that they are unable to pay the fine. Upon a showing of indigency, the appellants should be allowed to make payments in reasonable installments.").

We find the procedure identified by these cases to be necessary to preserve the fundamental fairness required by the Fourteenth Amendment in parole revocations. By applying this procedure, we hold that where a technical violation of parole arises because of a failure to pay for treatment, then the burden is on the parolee to demonstrate his inability to pay. Upon proof of this inability, the burden then shifts to the Board to prove that the parolee was somewhat at fault by failing...