Opinion
J-S78006-16 No. 1356 WDA 2015
11-29-2016
COMMONWEALTH OF PENNSYLVANIA v. RANDY P. HARTZFELD Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence July 1, 2015
In the Court of Common Pleas of Jefferson County
Criminal Division at No(s): CP-33-CR-0000645-2014 BEFORE: BENDER, P.J.E., OTT, and FITZGERALD, JJ. CONCURRING/DISSENTING MEMORANDUM BY OTT, J.:
Former Justice specially assigned to the Superior Court.
While I agree with the decision of the Majority to vacate the no-contact condition imposed on Hartzfeld's sentence with respect to the victim's mother, I see no reason to vacate the no-contact provision with respect to the victim. For that reason, I respectfully concur and dissent.
I note, however, my reason for vacating that portion of Hartzfeld's sentence differs from that of the Majority. Here, Bortz was not a victim of Hartzfeld's crime, and, in fact, "fully intended to marry [him] even after a jury of his peers found him guilty of endangering her child's welfare." Trial Court Opinion, 3/14/2016, at 3. Although I understand the court's concern that Bortz will be ill-equipped to protect her minor child, the victim herein, from Hartzfeld if she continues to have a relationship with him, that issue is one for Children and Youth Services, rather than the court. --------
As the Majority aptly explains, while "the trial court lacked authority to set the terms of [Hartzfeld's] parole," Section 6134(b) of the Probation and Parole Act permits a trial court to make a recommendation respecting the terms of a defendant's parole which should be considered as "advisory only." Majority Memorandum at 5 (citations omitted). For that reason, I believe the "condition" imposed by the trial court, which has no real legal effect, should be considered simply a recommendation by the court upon Hartzfeld's release. Although I recognize the panel decision of this Court in Mears , supra , supports the Majority's ruling, I emphasize that Mears involved a condition which subjected the defendant to random searches upon his parole. It did not, as here, seek to protect the welfare of a minor child who was physically abused by the defendant. In my opinion, a "condition" concerning the protection of a minor should constitute a legitimate exception to the Mears decision.
Accordingly, I would not strike from Hartzfeld's sentencing order, the no-contact condition with respect to the minor victim.