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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
H.C.G. :
:
Appellant : No. 1472 MDA 2021
Appeal from the Judgment of Sentence Entered October 18, 2021
In the Court of Common Pleas of Mifflin County Criminal Division at No:
CP-44-CR-0000110-2021
BEFORE: STABILE, J., DUBOW, J., and McCAFFERY, J.
DISSENTING MEMORANDUM BY STABILE, J.: FILED: MAY 15, 2023
Because I believe the record reflects an appropriate exercise of
discretion on the part of the district attorney at the time the decision was
made, and because subsequent developments in the law do not entitle
Appellant to the relief the Majority orders, I respectfully dissent.
The Mifflin County District Attorney declined to move for Appellant’s
admission into Accelerated Rehabilitative Disposition (“ARD”), because under
Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020), overruled,
Commonwealth v. Richards, 284 A.3d 214 (Pa. Super. 2022) (en banc)
Commonwealth v. Moroz, 284 A.3d 227 (Pa. 2021) (en banc), the prevailing
jurisprudence at the time, a prior ARD could not be considered a first offense
in the event the defendant committed another DUI offense. The Mifflin County
District Attorney decided public safety would be best served by not offering
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ARD for DUI offenses, because the DUI statute provides harsher punishments
for repeat offenders.1
Refusal of ARD in order to protect the public is well within the district
attorney’s discretion. In Commonwealth v. Lutz, 495 A.2d 928 (Pa. 1985),
our Supreme Court explained that “[a]dmission to an ARD program is not a
matter of right, but a privilege.” Id. at 933. Thus, no criminal defendant may
move to submit his or her own case to ARD; the discretion to do so rests with
the prosecuting attorney.
[S]ociety, for its own protection, has an interest in carrying
out the penalties prescribed by the legislature for drunk driving,
except in the cases where even society’s representative in the
case, the district attorney, acting in conjunction with the court,
[…] determines that ARD is preferable to conviction because of the
strong likelihood that a given criminal defendant will in fact be
rehabilitated by an ARD program.
Id.
The prosecutor’s discretion in this matter is subject to few limitations.
“Since the judgment about who can benefit from ARD is subjective, and since
society may be seriously damaged by a wrong judgment, the district attorney
is not to be faulted if he errs on the side of caution.” Id. at 935. So long as
the decision is related to the protection of society, courts will not disturb the
district attorney’s decision.
In any event, the decision to submit the case for ARD rests
in the sound discretion of the district attorney, and absent an
abuse of that discretion involving some criteria for
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1 See 75 Pa.C.S.A. § 3803.
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admission to ARD wholly, patently and without doubt
unrelated to the protection of society and/or the likelihood of
a person’s success in rehabilitation, such as race, religion or other
such obviously prohibited considerations, the attorney for the
Commonwealth must be free to submit a case or not submit it for
ARD consideration based on his view of what is most beneficial for
society and the offender.
Id. at 935. (Emphasis added).
The District Attorney articulated his reasons well. In the District
Attorney’s view, public protection was served better by denying ARD while
Chichkin was in force, because anyone who completed an ARD and then
reoffended would not be subject to the more severe penalties typically
applicable to recidivist DUI offenders. N.T. Hearing, 6/8/21, at 8-10. Further,
the District Attorney explained that, under his policy, the DUI recidivist
penalties would apply automatically, without the need to argue to the trial
court for a more severe sentence based on a prior ARD that, under Chichkin,
technically is not a prior offense. Id. at 22-23. The district attorney noted
that its policy was in line with the protection of the public, the statutory DUI
penalty scheme, and our Supreme Court’s opinion in Lutz. Id. at 23.
The Majority, though it acknowledges the broad discretion afforded the
District Attorney, concludes that this Court’s overruling of Chichkin requires
us to vacate the judgment of sentence and remand for further consideration
because Chichkin, the impetus for the Mifflin County District Attorney’s
blanket policy on ARD, has been overruled. I disagree. The District Attorney’s
view, put simply, is that the protection of the public is better served by
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ensuring that recidivist DUI offenders are sentenced in accord with § 3803.
That decision, at the time it was made, was well within the District Attorney’s
discretion under Lutz. The Majority does not contend otherwise and offers no
legal basis for winding the clock back to revisit the decision based on a
subsequent change in the law.
Appellant already has been tried and convicted, and I discern no reason
why the overruling of Chichkin is grounds for disturbing the result of the trial.
As noted above, ARD is a privilege, not a right. Lutz, 495 A.2d at 933. Thus,
for present purposes, the overruling of Chichkin implicates nothing more than
a privilege offered to some DUI defendants at the discretion of the prosecuting
attorney. Despite Appellant’s lack of a right to ARD (indeed, the lack of a right
even to move his own admission into ARD), and despite the broad discretion
afforded to prosecutors in determining which cases are appropriate for ARD,
the Majority forces the Mifflin County District Attorney into a choice between
moving Appellant into ARD or expending the public resources necessary to
retry him. Because the overruling of Chichkin does not warrant this result, I
would affirm the judgment of sentence.
I respectfully dissent.
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Com. v. H.C.G.
Combined Opinion