*2 Before CAVANAUGH, McEWEN and CIRILLO, JJ. OPINION ANNOUNCING THE JUDGMENT OF THE COURT:1
This
appeal
is an
from the lower court’s denial of a
motion to dismiss the charges
grounds
jeopar-
double
A
dy.
pre-trial order
denying
motion to dismiss on
grounds of
final,
appealable
order.
Buechele,
Commonwealth v.
Appellant then received a letter dated January Iacovitti, from Joseph M. Chief of the ARD Division of the Montgomery County District Attorney’s Office. This letter gave general description of the ARD alterna- tive. The letter instructed McSorley complete an en- questionnaire closed to determine his eligibility and to re- (10) turn it within ten days in order to be considered for the It is not clear from the record exactly when However, received this letter. appellant complet- ed questionnaire and hand delivered it on February 1982—the same evening appeared he for his first session of the safe driving clinic.
Thereafter, appellant attended the remainder of the classes of the safe clinic. 22, 1982, On February session, after the last McSorley received a certificate signed Dr. by Miraglia stating that he had successfully completed
the requirements of the clinic. Appellant next received a letter dated February 1982 from Mr. Iacovitti. This correspondence stated that McSorley was ineligible *4 ARD because of prior in Philadelphia two arrests County. The case was then scheduled for trial.
The record demonstrates appellant that attended the safe driving believing clinic in he was ARD. He felt that suc- cessful completion of the clinic would result dismissal of the charges against him. Before appellant’s each of four sessions at the county courthouse he jotted down “ARD” on the visitors’ log under “Nature of Business.” McSorley acting was under his own understanding of the situation since he did not consult a lawyer during any aspect of the
526
25 letter
receiving
February
until after
proceedings
program.
him for the
rejecting
dismiss, Mr.
on this motion to
hearing
appellant’s
At
the district attor-
that
testimony demonstrated
Iacovitti’s
McSorley
intended to recommend
office never
ney’s
directing McSor-
Nevertheless,
18 letter
January
ARD.
Miraglia
after Dr.
only
sent
at the classes was
appear
to
ley
attorney’s office
from the district
notification
received
into the
This was
accepted
program.
had been
McSorley
the clinic
informing
method of
usual administrative
indication
why
There was no
ARD participants.
about
office. There-
attorney’s
the district
sent from
notice was
error.
it
an administrative
fore,
assume was
we
dollar
fifty
his
of a
payment
contends that
Appellant
driving program
safe
was
attendance at the
($50.00) fee and
liberty.
of his
deprivation
freedom and
on his
a restriction
deprivation
maintains
appellant
Accordingly,
pur-
jeopardy
for double
an order of sentence
amounts to
necessary
Therefore,
of the case would be
dismissal
poses.
multiple punishment.
from
protect
attendance
appellant’s
maintains that
The Commonwealth
part.
on his
voluntary
act
driving program
at the safe
to enter
not “direct”
did
The Commonwealth
is without
clinic
the Commonwealth
because
safe
to enter the
defendant
any
to direct
power
punishment
Therefore,
subjected
was never
did not attach.
and jeopardy
a conviction
flowing from
jeopardy protects
against
The
prohibition
prose
for successive
punishments
multiple
from
States, v. United
Abney
same offense.
cutions for the
(1977).
Jeopardy
527
377,
1055,
(1975)(with
95 S.Ct.
After extensive it appears jeopardy- provisions yet have to be applied Pennsylvania’s diver- Indeed, sion program. our search has not revealed any case where a criminal defendant prosecuted after suc- cessfully completing ARD.
When a criminal defendant agrees to diversion the pro-
ceedings are deferred
reserving
right
with the state
if
prosecute
any
defendant violates
of the
conditions
the program. Pa.R.Crim.P. 184. Where the defendant
successfully meets the
program,
conditions of the
charges against the defendant will be dismissed and he is
usually entitled to have his arrest
expunged.
record
Pa.R.
185;
Crim.P.
506,
Armstrong,
495 Pa.
(1981).
Nevertheless, the
give
pic
caselaw does not
a clear
ture of
how
effects the status of a criminal defendant.
In
McDevitt,
589,
Commonwealth v.
Pa.Commw.Ct.
(1981),
A.2d 280
the court held that by accepting ARD a
defendant knowingly
right
prove
waives his
his innocence
or risk conviction by entering
plea.
The court also held
that admission into ARD is an offense for purposes of
classifying the defendant an
offender
though
habitual
even
formal convictions cannot be obtained under
591,
Id. at
hand,
innocence. ruled that the lower court background, this Against had not in and put prior jeopardy had not been McSorley ARD or other criminal any from any punishment suffered any not valid Also, the court held that there was penalty. into the accepted had been McSorley that evidence appellant’s double appear it would glance, At first yet had not jeopardy fail claim should because jeopardy sister state of However, find the law of our we attached. Urvan, 446 N.E.2d State helpful. to most Ohio5 be a (1982), the court faced with 1161, 4 was App.3d Ohio case, defendant In that claim. similar double under an allied offense County, in Medina Ohio charged The defendant was receiving property. stolen statute6 with the diversion successfully completed for recommended and result, receiving As a County. in Medina program later, defendant was dismissed. One week charge was to the grand relating for theft County in Cuyahoga indicted charge.7 The County as the Medina same events charge grounds Cuyahoga to dismiss the filed a motion jeopardy. out that pointed The court with their war processes of diversion
Any view (when suc- of them conception must include a purposes or pro- of served equivalent as the cessfully completed) of the crime---- consequent expiation time with the bated sense and Moreover, logical is to make program if the election to treatment, the state’s at all in fair traffic right forecloses its property crime of stolen pursue charge through grand of the theft pursuit undertake 2935.36, Pennsylvania's. virtually program, R.C. identical 5. Ohio’s diversion seq. et Pa.R.Crim.P. import.” An allied offenses of "similar The statute refers to 6. R.C. 2941.25. both, only may may one. be convicted and sentenced be tried for but accused Urvan, pursue. supra, 446 prosecutor offense to has the choice of which The at 1166. N.E.2d sequence, county Medina the entire but could have had venue over 7. Either County acted first. agent second (Cuyahoga County). must Jeopardy attach (Medina as a result the activity of the first County).” Id. N.E.2d at
The interpreted court process diversion in terms of a relationship contractual between the state and the defend- ant. Id. at 1167. as in Commonwealth, partic- Just ipate program diversion a defendant must any waive statute of limitations and any constitutional or statutory rights. speedy trial Pa.R.Crim.P. 178. The defendant agrees to whatever conditions the state establishes with the expectation charges will be when dismissed he *7 meets those conditions.
As the points pre-trial Urvan court out “if diversion programs effective, are to be the state up must live to its obligations.” True, Id at 1167. diversion programs give district attorney discretion over which cases proposed are for ARD. Boerner, Pa.Super. 168, Commonwealth v. 268 (1979). However, A.2d 407 883 the decision to divert a prosecutor “comes after the has fully discharged all discretionary prosecutorial functions and after the die has been State, cast.” Dearborne v. 575 S.W.2d 263 In (Tenn.1980). placing a a pro defendant into diversion gram, the state covenants dismiss the once charges the defendant satisfies the conditions of program. the Unless the defendant one conditions, violates of those the state prosecute cannot him. Just as the of plea bargain terms ing state, arrangement binding are on the Landi, 280 Pa.Super. 421 442 (1980), A.2d so must the terms of a agreement diversion the To bind state. hold otherwise, would create disincentive for defendants to programs. enter diversion “For the state to be allowed to bring prosecution ... a second ... after all the terms of the met, diversion contract have been the spirit violates and the letter of constitutional double the jeopardy policy spirit and of in legislative policy id., the the Urvan, state.” N.E.2d at 1168. hand, to the applying principles these case we in participating
first must determine was whether procedures clear that the the ARD It is outlined seq., et were not Neverthe in Pa.R.Crim.P. followed. in less, justified relying January the appellant was A circum person reasonable faced with same letter.8 Dr. differently. Miraglia’s acted stances would have pursuant Montgom was sent to authorization letter Office. As the Urvan court County Attorney’s District ery its noted, obligations by pretending cannot state avoid Urvan, id, at 1167. What disparately. it acts that in it County “knew and did Medina ... knew Ohio State County in and was legal contemplation Cuyahoga in bound applicable federal and state constitutional places by in both or inadvert acts by design the state principles. Whether (Footnote omitted.) (Emphasis ence makes difference.” no added.) find Id. reasoning applicable at 1167. this We the “inadvertence” occurred within the case where Montgomery County. Office of What Attorney’s District right and its attorney’s district office knew did with could reason (sending the notification hand his into evidencing acceptance interpreted have as ably claiming left ARD), (by it take with its hand away cannot A reading reasonable ineligible). both January might and 25 letters well have January *8 completion a successful appellant indicated to that charges against result in of the would a dismissal program in detrimentally relied on this reasonable Appellant him. circumstances, that appel we hold Under terpretation. into ARD. implicitly accepted lant was prosecut- restrained from Although the Commonwealth is time, proceed- dismiss the at this we cannot ing appellant completed the appellant. Appellant has ings against an ordinarily only phase clinic one safe which to a given that be defendant under agreement ARD would course, attorney the letter to an familiar with Of if had shown 8. However, procedures have been avoided. defendants this confusion would just they so as can counsel for minor offenses should not be forced retain Instead, county bureaucracy. their counties should structure understand the disadvantaged. correspondence lay people will be procedures so not and
531 Therefore, similar charges. we enter an order staying the against proceedings appellant and remanding di- with rections to divert into ARD impose and whatever remaining conditions as would be on imposed a defendant under similar circumstances. Jurisdiction relinquished.
CIRILLO, concurring opinion. J. files McEWEN, dissenting J. opinion. files CIRILLO, Judge, concurring:
I
troubled
casual
majority’s seemingly
am
reliance
as
jeopardy
grounds
double
clause
jeopardy
may
reversal. While
clause
invoked
be
contexts,
in
principal
protect
various
its
is to
design
criminal
defendants from
trials
multiple
multiple punishments
and
Wilson,
United States v.
for the
offense.
same
420 U.S.
1013,
(1975);
95
A criminal has a “constitutional in interest finality, cognizable in seeing pro- interest that criminal ceedings him against are resolved once and for Wes- all.” Drubel, ten and “Toward a Theory General of Double Jeopardy,” Sup.Ct.Rev. however, Here has no right expect problems his with the Common- wealth have been His resolved. constitutional interest yet not finality has vested. defendant, convicted, may once
Certainly, criminal retried for the same that he will be rest confident *9 however, in ARD is not program, A an participant offense. to confidence. entitled the same Admission to an ARD any equivalent is not to conviction under circum program Pa.Super. stances. Knepp, Commonwealth v. (1982). Rather, A.2d 1016 in a participation pro diversion gram results in a deferral of criminal until charges comple program. tion of the Pa.R.Crim.P. 181. In the event the are program successfully completed, charges the is and no conviction ever results. dismissed Commonwealth the supra. Only program completed v. when Knepp, ARD feel in final of may participant disposition an secure charges, Only then hemay before. shield himself with protection the of the double clause. of case, only phase one appellant completed
In has appel- The Commonwealth removed program. his diversion remaining of appellant while had conditions lant from ARD I should appellant While think yet complete. diversion ARD, not by it is given opportunity complete the be jeopardy. reason of double as the com
Rather,
concept
I
the
contract
view
under District
Miraglia’s letter written
Dr.
pelling analogy.
to attend safe
letterhead,
directs
which
Attorney
an offer of the
school,
extends
driving
enroll
offer
accepted alternative. When
clinic,
arrangement
or
agreement
an
ing
in the safe
notes:
majority
into. As
was entered
the state
a diversion program,
defendant into
placing a
once
charges
dismiss the
covenants to
the de
Unless
conditions of
satisfies the
conditions,
cannot
one of those
state
fendant violates
plea bargain
of a
him.
as the terms
prosecute
Just
state,
binding on the
Commonwealth
are
arrangement
(1980), so must
134,
By diversion, the conditions comply with failure than a agreement. its has breached *10 Accordingly, I concur in the result reached the majori- ty, appellant should be allowed complete ARD. This disposition is proper, because the Commonwealth’s re- prosecution from ARD is or moval of a double rather, punishment, plainly but it breach agreement.
McEWEN, Judge, dissenting:
Since, unlike I my colleagues, do not perceive such reflec- tions of equity or of contract of protection law or against double jeopardy that would serve bar prosecution of appellant by Commonwealth, I most respectfully dis- sent.
Appellant was arrested on November at the scene of a motor vehicle accident after he failed a field sobriety registered test and breathlyzer. on a As 0.22% result, charged he was with violation of Section 3731 of the Code, 3731, Driving Vehicle 75 Pa.C.S. Under the Influ- § ence of Alcohol. Soon after his preliminary hearing in January, following received the letter: *11 following received thereafter days a few Appellant he was offense with which concerning the letter further charged:
Appellant questionnaire completed enclosed with this letter of 25 and January returned it to the personally Office of the District Attorney February 1, 1982, just hours prior to the first of attending the four safe classes he would eventually attend.
Appellant was thereafter notified by letter on February 25, 1982, that his application for the ARD program had been denied due to prior two convictions in Philadelphia. *12 Appellant entered a guilty not plea 2, 1982, March and then retained counsel for institution of the proceedings at issue.
The finds that opinion principles lead of double jeopardy prosecution. had, however, preclude Jeopardy view, in my never attached. The concurring opinion finds princi- ples of contract law and preclude fairness prosecution but I am unable to agree. appellant attended four
While two and one-half hour driving classes, $50.00, clinic for he charged which was he had been made he aware attended even the first before class, the of by January letter from the District Attor- ney, that he had not been admitted to ARD program complete since it was necessary procedures, first two specifically, appellant complete had an for application program inclusion and the had to Attorney District eligible for the program. was determine whether made that if filed application, The letter clear final carefully then be and a matter reviewed will “[t]he made, of will notified.” you determination which be applica- his after submitted Twenty-five days tion, of his ineligibility he was notified a occasioned as result of confusion hardship The only 18, 1982, January appellant’s letter attend- the initial of payment of ance four classes and safe principles certain circumstances fee. While under $50.00 the facts of might preclude prosecution, operate fairness I, there- such conclusion. compel the instant case do fore, dissent.
485 A.2d Pennsylvania COMMONWEALTH HOBURN, Appellant. J. Thomas Pennsylvania. Superior Court of March Submitted 1984.
Filed Nov.