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HomeMy WebLinkAboutCP-21-CR-0271-2006 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : CP-21-CR-0271-2006 : : CHARGE: : (1) UNLAWFUL POSSESSION : SMALL AMOUNT MARIJUANA : (2) DUI, GENERAL IMPAIRMENT : (3) DUI, HIGHEST RATE : (4) DUI, COMBINATION : WILLIAM C. ANDERSON, JR : OTN: L252960-1 : AFFIANT: PTL. MARK BREWBAKER IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Ebert, J., June 25, 2008 – The Commonwealth is appealing this Court’s Order of March 18, 2008, granting Defendant’s Motion to Rescind Revocation From ARD and declaring Defendant to have 1 successfully completed the ARD program. The Commonwealth’s bases of appeal are as 2 follows: 1.The lower court committed an error of law in granting the Defendant’s Motion to Rescind Revocation from the ARD Program and declaring that the Defendant has successfully completed the ARD program. 2.The lower court abused its discretion by ordering the Defendant’s admission into and completion of the ARD program without first conducting an evidentiary hearing for the Defendant to meet his burden of proof. 3.The lower court abused its discretion in granting more relief than the Defendant requested. 1 See Order of Court, March 18, 2008. 2 See Commonwealth’s Concise Matters Complained of on Appeal, filed May 22, 2008. STATEMENT OF FACTS Defendant William Anderson, Jr., was charged with Driving Under the Influence and 3 related offenses on August 20, 2005. He was accepted into the ARD program on July 14, 2006. 4 Defendant was required to complete seven requirements for the ARD program including payment of all ARD fees and costs, attending DUI School, and attending any recommended counseling. Defendant was required to notify the Probation Officer in the event of any address 5 change. Defendant was often late in making payments on his fees and costs and received letters from the probation office notifying him that his participation in the ARD program was in th jeopardy if he did not make his payments on time. Defendant successfully completed the 87 Multi-Offender DUI School between February 1, 2007, and February 19, 2007. On July 10, 2007, the Commonwealth petitioned to have Defendant removed from the ARD program for failure to fully pay his fees and costs and for failing to complete an alcohol 6 abuse treatment program. On August 1, 2007, the Court ordered Defendant to show cause at a 7 hearing on August 24, 2007, why he should not be removed from the ARD program. On August 24, 2007, the Court continued the hearing on the Petition for Revocation from the ARD program. This continuance was granted based on the fact that the Defendant had made an additional $180.00 payment bringing his total outstanding balance down to $535.00 out of a beginning balance of $1,815.50. Additionally, the Defendant promised to complete his drug treatment program at the Roxbury Treatment Center. The Probation Officer was advised by Roxbury Treatment Center that the Defendant had been attending treatment and did complete his treatment program and was discharged on September 5, 2007. 3 See Order of Court, Jul. 14, 2006. 4 See Id. 5 See Id. 6 See ARD/DUI Revocation Petition, Jul. 10, 2007. 7 See Order of Court, Aug. 1, 2007. 2 While the record is unclear, the matter was not called during the ARD Court held on October 19, 2007. At that time, the Defendant apparently still owed a balance of $535.00. Accordingly, the Probation Officer wrote to the Defendant and directed that he appear for a hearing on Friday, December 7, 2007, at 9:00 a.m. This letter was sent to the Defendant’s address and signed for by an individual named Bonnie Gayman. In any regard, the Defendant did not appear at the December 7, 2007, hearing. He maintains that he had moved and had not received the hearing notification. This, of course, is the Defendant’s fault since he was obligated under the provisions of the ARD Program to immediately notify the Probation Office of any change of address. As a result of failing to appear, without any further evidentiary hearing, an Order was entered revoking him from the ARD Program and directing him to appear for formal arraignment on Tuesday, January 22, 2008. The Defendant did appear for arraignment and his case was set for trial to begin on March 24, 2008, at 9:00 a.m. On March 3, 2008, Defendant filed his Motion to Rescind Revocation from the ARD Program. On March 6, 2008, this Court issued an Order for the Commonwealth to file an Answer to the Defendant’s Petition on or before March 14, 2008, and setting a hearing on the matter for 1:30 p.m. on March 18, 2008. In direct violation of this Court’s Order, the Commonwealth failed to file an to answer to the Defendant’s Motion to Rescind Revocation. On March 18, 2008, a hearing was held on the matter. The Commonwealth marked 5 exhibits for identification and the Defendant marked 2 exhibits for identification. Chief Deputy District Attorney Birbeck indicated that he was ready to proceed. It became clear that of the total amount owed by the Defendant for fees and costs on March 18, 2008, there remained only a balance of $391.00. The Defendant made this payment to the Clerk of Courts prior to the 3 hearing as evidenced by Defendant’s Exhibit #1 (an excerpt from the Clerk of Courts record). In short, all ARD requirements had finally been completed. The Commonwealth called no witnesses during the hearing. Chief Public Defender, Taylor Andrews, who represented the Defendant, correctly stated to the Court that the Defendant had no absolute legal entitlement to be restored to ARD and simply appealed to the Court’s equitable powers to complete the program since he had now satisfied all of its conditions. Chief Deputy District Attorney Birbeck responded basically by reciting the provisions of Pa. R. Crim. P. 318 (C). Senior Assistant District Attorney Dailey, the ARD Coordinator, then spoke about Defendant’s noncompliance and stated that “the amount of time that we have already spent on this individual is above and beyond the vast majority of anyone else who has come through this program.” The Court in no way prevented any party from calling any witnesses. In fact, the District Attorney ARD Coordinator specifically told the Court “we will comply with what the Court directs. We aren’t volunteering to let him into the ARD program.” DISCUSSION It goes without saying that the Defendant in this case can hardly be considered a model ARD participant. However, he did eventually complete all the requirements within the 2 year time period allowed by Pa. R. Crim. P. 316 (B). Even though it was the Defendant’s fault that he did not appear on December 7, 2007, but for the final monetary payment, the Defendant had completed all of the other substantial requirements of the ARD Program. As Defendant’s counsel pointed out, had he appeared, he would have most likely been given an opportunity to pay the money. What appears to be at issue here is the Commonwealth’s position that once the order was issued revoking the Defendant from ARD on December 7, 2007, without any hearing or 4 testimony, because of his failure to appear, that his only remedy with regard to ARD was to reapply for admission to the Program. Under such circumstances, the attorney for the Commonwealth would then have every right to deny admission. This Court is not unfamiliar with the ARD Program. Prior to becoming a Judge, we served as ARD Coordinator for the District Attorney’s Office of Dauphin County, the ARD Coordinator of Cumberland County, as First Assistant District Attorney, and was overall responsible for administration of the Program as the elected District Attorney of Cumberland County. Two principles regarding the administration of ARD warrant discussion. First, this Court is well aware that with regard to moving an individual into the ARD Program, the attorney for the Commonwealth is given practically unfettered discretion. Short of a Constitutional violation in the nature of race, religion, or other obviously prohibited consideration, the Court has no power to force the District Attorney to accept any person into the ARD Program. That having been said, once a person enters the ARD Program, the Program is a Court Program. As noted in the explanatory comment to Chapter 3 of the Pa. Rules of Criminal Procedure, “the Rules in this chapter provide the procedural framework for the utilization of Accelerated Rehabilitative Disposition by the Judges of the Courts of Common Pleas…” Indeed, once an individual is entered into the ARD Program, their performance and compliance is monitored by a Probation Officer who is directly responsible to the Judge assigned to the ARD Court. The revocation procedure outlined in Pa. R. Crim. P. 318 supports the fact that, just like any other type of probationary sentence, the Court has great discretion in determining when to sanction a Defendant by removing him from the ARD Program. It is specifically noted that the language states that “when a Defendant has committed a violation of a condition of the Program, the Judge may order, when appropriate, that the Program be terminated.” This finding is to be 5 predicated upon the Defendant being brought before the Court and the Judge giving the Defendant an opportunity to be heard. Here the Defendant did not appear in December 2007 because he had not provided a change of address notification. Had he appeared and been heard on the merits, he probably would have been granted time to make the final payment, given the fact that he had paid over $1300.00 toward the fee, completed his required counseling and DUI school. This case finally comes down to a consideration of several factors: (1) the equitable powers of the Court to govern the ARD Program, (2) a misunderstanding between the Court and the District Attorney’s Office, and (3) a common sense application of the concept of judicial economy and expenditure of public resources. The Commonwealth admits in paragraph 2 of its Concise Statement of Matters Complained of on Appeal that the Court had ordered them to file an answer to the Defendant’s Motion to Rescind Revocation. They admit they did not file this answer and maintain that they did not have to answer pursuant to Pa. R. Crim. P. Rule 575 (B) (1). For some reason they seem to ignore the portion of that rule that states “an answer to a motion is not required unless the Judge orders an answer in a specific case.” Here pursuant to Pa. R. Crim. P. Rule 577, this Court, after reviewing what everyone admits was a very unusual motion, determined that an answer was necessary. When the Commonwealth did not answer the Motion in direct violation of this Court’s order, this Court did not consider the failure to answer to constitute an admission. Rather, as is common in this day to day operation of the Court’s business, the failure to answer was an indication that the Commonwealth may not have been adamantly opposed to the relief requested in this one case. This perception was promoted by the presentation made by the Commonwealth during the hearing on this matter on March 18, 2008. The Chief Deputy in charge of the case merely 6 recited the revocation rule to the Court. The District Attorney ARD Coordinator voiced his frustration with the Defendant’s conduct but again stated, “we will comply with what the Court directs. We are not volunteering to let him into the ARD Program.” Had they actually filed their answer and presented testimony regarding the Defendant’s rather poor compliance record in the ARD Program, this Court may have viewed the matter differently. Again, at this point, the Court was faced with the fact that the Defendant had finally completed all of the ARD requirements. Given what the Court perceived as a rather low key response from the Commonwealth, it appeared to the Court that the most common sense approach to this case was to end it. As the Court stated on the record, this had nothing to do with the poor performance of the Defendant but rather the fact that the Defendant’s ARD completion would be considered a conviction should he have a repeat DUI offense, and it allowed the Commonwealth and the Court to expend no further resources or inconvenience any witnesses for an offense that had been committed over 2 ½ years ago. At the conclusion of the hearing, the Court plainly chastised the Defendant and warned him of the consequences of future criminal conduct. In short, given the circumstances, this Court felt that adequate justice had been done. It relied on the express representation of the District Attorney ARD Coordinator that “we will comply with what the Court directs.” Contrary to this on the record statement and after failing to comply with the earlier order in which they could have outlined their legal position or total outrage with this Defendant’s conduct, they now appeal. This totally frustrates this Court’s initial desire to expend no more resources on this case. This is an unusual set of circumstances. Having been a criminal prosecutor for over 25 years before coming onto the bench, I certainly appreciate the frustration of the District Attorney when a Defendant does not comply with relatively simple requirements. On the other hand, it 7 was really this Court’s probation officer that had to constantly prod the Defendant to come into compliance, and the failure of the Defendant to comply was really an affront to this Court, as ARD is a Court program. There appears to be no Appellate case law on point, because cases involving revocation from ARD are usually filed by Defendants objecting to their removal from ARD. While not factually on point, the judicial philosophy outlined in Commonwealth v. Lebo, 713 A.2d 1158 (Pa. Super. 1998) is instructive in regard to a trial court’s relationship to the ARD program. As noted in that case, “Termination of ARD participation is charged to the sound of discretion of the trial court.” Id. at 1161. Again, in this case, while the procedural mechanism used by the Defendant was somewhat unusual, the ultimate question was whether or not the Defendant’s termination from ARD was final or whether it could be rescinded given the circumstances. Logically, it follows that this decision should only be reversed where the trial court abused its discretion or committed an error of law. The order of December 7, 2007, revoking the Defendant from ARD was an order of this Court. As noted in Lebo, “a trial court is entitled to great deference in the interpretation of its own orders. Appellate review of a trial court’s actions relies heavily upon the sound discretion of the trial judge. Reversal occurs only in the event that a clear abuse of the trial court’s discretion is evident.” Id. at 1161. Given the broad general powers of the Court to administer the ARD program, it cannot be said that the Court in this one case abused its discretion in allowing a Defendant who had finally completed all of the 8 conditions required of him by the Court to grant his request to have his prior order revoking him from ARD rescinded. This case should be over. By the Court, M. L. Ebert, Jr., J. Michelle Sibert, Esquire Chief Deputy District Attorney Taylor Andrews, Esquire Attorney for Defendant 9