Commonwealth v. ScheinertCommonwealth v. Scheinert
- Reporters:
- , ,
- Before:
- Cavanaugh
Lead Opinion
Denise Scheinert was tried and found guilty of driving while under the influence of alcohol. She had previously been arrested and charged with the same offense in 1983, after the effective date of the mandatory sentence provisions of
Acceptance of Accelerated Rehabilitative Disposition or any other form of preliminary disposition of any charge brought under this section shall be considered a first conviction for the purpose of computing whether a subsequent conviction of a violation of this section shall be considered a second, third, fourth or subsequent conviction.
Appellant contends that this provision is in conflict with ARD rules adopted by the Supreme Court and, therefore, invalid. The adoption of general rules governing practice and procedure, she argues, has been vested exclusively in the Supreme Court by Article 5, section 10(c) of the Pennsylvania Constitution.
The Supreme Court’s rationale for the ARD rules which it adopted was explained as follows:
The purpose of this program is to eliminate the need for lengthy motions, trials and other court proceedings, in cases which are relatively minor or which involve social or behavioral problems which can best be solved by programs and treatments rather than by punishment. In many cases, legal defenses may be available which would result in acquittal or delay in disposition of the charges. When immediate treatment is needed, however, defendant and counsel may be willing to have defendant undergo such treatment without an adjudication of guilt.
PA.R.Crim.P. 185 comment. The rules which the. Court adopted,2 however, are silent with respect to the collateral consequences of a defendant’s participation in ARD. It must be conceded, as appellant calls to our attention, that this Court has held that participation in an ARD program may not be deemed a conviction for purposes of impeaching a witness. Commonwealth v. Krall, 290 Pa.Super. 1, 434 A.2d 99 (1981). On the other hand, in Commonwealth v. Knepp, 307 Pa.Super. 535, 453 A.2d 1016 (1982), the Court held that although ARD participation did riot constitute a
These decisions, however, are not controlling of the issue now before us. The law is well-settled that “[i]t is the province of the legislature to determine the punishment imposable for criminal conduct.” Commonwealth v. Wright, 508 Pa. 25, 40, 494 A.2d 354, 361 (1985), affirmed sub nom., Pennsylvania v. McMillan, — U.S. —, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). “The legislature has the right to fix the maximum penalty and likewise can, if it sees fit, name the minimum.” Commonwealth v. Glover, 397 Pa. 543, 545, 156 A.2d 114, 116 (1959).
The legislature, at
Appellant contends additionally that by equating ARD participation with a prior conviction for sentencing purposes,
13] Appellant’s contention that she was denied due process by the Commonwealth’s failure to notify her of its intention to invoke
Appellant contends finally that
The judgment of sentence is affirmed.
KELLY, J., joins this opinion and files a concurring opinion. CAVANAUGH, J., joins this opinion and also the concurring opinion of KELLY, J.Notes
. The sentencing court also directed Ms. Scheinert to pay a fine of three hundred ($300) dollars and the costs of prosecution.
.
. See:
Concurrence Opinion
concurring:
I join in the well-reasoned opinion of the majority. I write separately to address the apparent conflict between our finding that Accelerated Rehabilitation Disposition (ARD) participation must be considered the equivalent of a prior conviction under
Once a district attorney decides to move a defendant’s admission into ARD,1 notice is sent to defendant explaining the program. A hearing is held in open court where prosecution, defense, and the victims, if any, may present testimony to the court regarding the appropriateness of ARD. If the judge determines that ARD should be permitted, the judge then informs the defendant of the conditions of the program. If the defendant accepts the conditions and agrees to yraive áll applicable statutes of limitation and speedy trial rights, then the record is closed and the charges are held in abeyance pending completion or termination of the program. See
If the defendant successfully completes the ARD program, the charges are dismissed and no conviction results.
In Commonwealth v. McKellin, 9 Pa. D. & C. 3d 572, 576 (1979), the court stated, “[t]he disburdening effect of successful ARD completion is not tantamount to a finding of innocence.” The learned trial judge was correct. While ARD participation does not result in conviction, neither does it result in an acquittal. Consequently, an unexpunged ARD record may result in collateral consequences even though the direct consequences of arrest were avoided by ARD participation.
In Pennsylvania, prior unadjudicated arrests may properly be considered at sentencing provided the arrests are not regarded as establishing criminal conduct. Commonwealth v. Shoemaker, 226 Pa.Super. 203, 313 A.2d 342 (1973). Even arrests which resulted in acquittals may be considered at sentencing so long as the judge is aware of the acquittal. Commonwealth v. Tisdale, 233 Pa.Super. 77, 334 A.2d 722 (1975). Likewise, ARD participation may be considered by the sentencing judge as an appropriate sentencing factor. Commonwealth v. Knepp, supra.
Pursuant to
The legislature has not turned the nonadjudicatory ARD into a conviction. Rather, it has designated two separate sentencing factors (A.R.D. participation or a prior conviction) as being equally adequate to trigger the imposition of a mandatory minimum sentence.4 That the triggering factors are of unequal weight as sentencing factors is of no consequence. See
. District attorneys have the sole discretion to move a defendant’s admission into ARD. See Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985). Appellate review of the district attorney’s discretion is quite limited. Id., 508 Pa. at 311-312, 495 A.2d at 935; see also Pyle v. Court of Common Pleas, 494 Pa. 323, 431 A.2d 876 (1981); but see Commonwealth v. Kiehl, 353 Pa.Super. 353, 509 A.2d 1313 (1986) (remand for hearing at which district attorney may place reasons for denying ARD on the record).
. Although the Commonwealth bears the burden of establishing an overriding need for retaining the arrest records, such need is readily apparent in the context of drunk driving cases. See Lutz, supra, 508 Pa. at 312-313, 495 A.2d at 936;
. “However, it is yet undecided whether the Commonwealth’s right to show bias of a defense witness is sufficient to overcome the prohibition against inquiry into such matters as a juvenile record or admission into an ARD program.” Id., 290 Pa.Superior Ct. at 7, 434 A.2d at 101.
. It is important to note that outside of the special context of the mandatory minimum sentence triggering language contained in