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HomeMy WebLinkAbout93-0148 CriminalCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CHARGE: (A) RECEIVING STOLEN PROPERTY MICHAEL MATTHEW O'BRINE NO. 148 CRIMINAL 1993 IN RE: DEFENDANT'S PETITION TO COMPEL ENTRY INTO ARD AND TO SET RESTITUTION BEFORE OLER. J. ORDER OF COURT AND NOW, this ` Lday of September, 1993, upon consideration of Defendant's Petition To Compel Entry into ARD and To Set Restitution, and following a hearing, restitution is fixed in this case in the amount of $250.00, or return of the stolen item in undamaged condition, at the victim's option, and the Commonwealth is directed to evaluate the Defendant for admission into the ARD program without regard to a higher figure of restitution. BY THE COURT, . Wesley Oler, J. William I. Gabig, Esq. First Assistant District Attorney Ron Turo, Esq. Assistant Public Defender : rc COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CHARGE: (A) RECEIVING STOLEN PROPERTY MICHAEL MATTHEW O'BRINE NO. 148 CRIMINAL 1993 IN RE: DEFENDANT'S PETITION TO COMPEL ENTRY INTO ARD AND TO SET RESTITUTION BEFORE OLER, J. OPINION AND ORDER OF COURT Oler, J. This case presents the interesting issue of whether the Commonwealth may condition its motion for accelerated rehabilitative disposition with respect to a defendant upon his or her acceptance of the Commonwealth's restitution figure. For the reasons stated in this Opinion, we believe that a determination of restitution in the event of a dispute is a matter for the Court. Statement of facts. Defendant has been charged with receiving a speaker box which was stolen by a juvenile from a motor vehicle. Defendant appeared in ARD Court for acceptance into the accelerated rehabilitative disposition program pursuant to the Commonwealth's motion for his admission, but the District Attorney's Office expressly conditioned its motion on Defendant's acquiescence in a restitution figure in the amount of $600. This he declined to do.' In the absence of a continuing motion on the part of the Commonwealth and any facts of record concerning the proper amount of restitution, the Court refused to order his entry into the program. On August 25, 1993, Defendant filed a Petition To 1 Defendant argued that the victim should be satisfied with return of the item as restitution. No. 148 Criminal 1993 Compel Entry into ARD and To Set Restitution. A hearing on the matter was held on Friday, September 3, 1993. At the hearing, the speaker box was admitted into evidence. No evidence as to valuation was presented by the Commonwealth, and the Defendant's witness, in the person of the arresting officer, estimated the value of the speakers to be $40 to $60 altogether, and the plywood housing and covering fabric to be worth another $20 to $25. This item is clearly homemade, and the Court finds that its value, with reinstallation, can not reasonably be said to exceed $250.00. Statement of law. It has been broadly stated that "[b]ecause admission into ARD is a [privilege] and not a [right], a defendant may not, without the district attorney's approval, move for acceptance into the program. Nor may a court, over the district attorney's objection, order that a defendant be placed in an ARD program." 3 Wasserbly, Pennsylvania Criminal Practice §37.09 (1989). However, it has also been said that, "[a]lthough the scope of the district attorney's discretion in moving or refusing to admit a defendant to ARD is broad, it is not without limits." Id. To establish an abuse of discretion in refusing a defendant for ARD, the defendant must show that the attorney for the Commonwealth used criteria for admission to ARD "wholly, patently and without doubt unrelated to the protection of society and/or to the likelihood of a person's success in rehabilitation, such as race, religion, or other such prohibited considerations."' 2 3 Wasserbly, Pennsylvania Criminal Practice §37.09 (1989), quoting Commonwealth v. Lutz, 508 Pa. 297, 310, 495 A.2d 928, 935 (1986). 2 No. 148 Criminal 1993 The rule applicable to ARD cases has thus been summarized as follows: "[While the district attorney has sole discretion to move for a defendant's admission into ARD, the prosecutor may not summarily reject a person from consideration for improper reasons." Commonwealth v. Melnyk, 378 Pa. Super. 42, 46, 548 A.2d 266, 268 (1988), allocatur denied, 522 Pa. 594, 562 A.2d 319 (1989). In this regard, several factors suggest that restitution is an area of proper judicial oversight with respect to ARD. First, under Pennsylvania Rule of Criminal Procedure 182(a), it is provided that [t]he conditions of the [ARD] program may be such as may be imposed with respect to probation after conviction of a crime, including restitution, except that a fine may not be imposed. In addition, the conditions of the program may include the imposition of costs, the imposition of a reasonable charge relating to the expense of administering the program, and such other conditions as may be agreed to by the parties. Second, a determination as to restitution has traditionally been a judicial function. See Act of June 18, 1976, P.L. 394, §1, as amended, 18 Pa_ C.S. §1106. Third, in the context of ARD, it has been held that a prosecutor's insistence upon restitution under certain circumstances will result in a finding of reversible error. Commonwealth v. Melnyk, 378 Pa. Super. 42, 548 A.2d 266 (1988), allocatur denied, _ Pa. , 562 A.2d 319 (1989) (indigent defendant; conviction and judgment of sentence vacated; admission into ARD ordered). Thus, restitution in ARD is treated by the rules as similar to restitution in sentencing; it appears to be regarded as a general program condition, as opposed to an 3 No. 148 Criminal 1993 item for negotiation as to amount for entry into or exclusion from the program. Where a dispute as to restitution arises, courts have traditionally been the instrumentality for resolution of the issue. And an inappropriate use of restitution to exclude a defendant from ARD has been the subject of judicial intervention in the past. These factors persuade the Court that admission into ARD should not be refused solely on the basis of a defendant's unwillingness to accept a restitution figure, if the amount sought has been found to be excessive by the court. Where restitution is determined by a court, the amount must be supported by the record; in the case of receiving stolen property, this amount is not to exceed the value of the item stolen. Commonwealth v. Reed, 374 Pa. Super. 510, 543 A.2d 587 (1988). For the foregoing reasons, the following Order will be entered: ORDER OF COURT AND NOW, this 96'day of September, 1993, upon consideration of Defendant's Petition To Compel Entry into ARD and To Set Restitution, and following a hearing, restitution is fixed in this case in the amount of $250.00, or return of the stolen item in undamaged condition, at the victim's option, and the Commonwealth is directed to evaluate the Defendant for admission into the ARD program without regard to a higher figure of restitution. BY THE COURT, Wesley Oler, Jr. 4 No. 148 Criminal 1993 William I. Gabig, Esq. First Assistant District Attorney Ron Turo, Esq. Assistant Public Defender :rc