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Commonwealth v. Belville4/9/1998
Following an April 1997 non-jury trial, appellant, Suzanne Belville, was found guilty of driving under the influence of alcohol. She appeals from her August 15, 1997 judgment of sentence imposing a forty- eight (48) hour to twenty-three (23) month term of imprisonment.
On appeal, appellant claims the prosecution abused its discretion in refusing to admit her to the Accelerated Rehabilitative Disposition (ARD) program. The facts as they pertain to this issue have been summarized by the trial court and are as follows.
In 1987, Appellant was placed into the ARD program following her arrest for DUI. In [April] of 1996, the Appellant was, again, arrested for DUI. In September of the same year, Appellant applied for and received an expungement of the 1987 ARD Disposition. In November of 1996, the Appellant applied for an ARD for the 1996 DUI charge. The District Attorney's Office denied the application.
The District Attorney's Office has an unwritten policy which denies admittance into the ARD program to those who have previously received an ARD. In furtherance of this policy, the District Attorney's Office keeps a list of individuals who previously received ARD Dispositions; thus, the Assistant District Attorney in charged of the ARD program was aware of the Appellant's prior ARD for DUI. Nonetheless, when asked on her ARD application for her current DUI charge if she had ever been `arrested, charged, cited (including Vehicle Code violations) or held by any law-enforcement or juvenile authorities in the United States regardless of whether the citation or charge was dropped or dismissed or you were found not guilty or whether the record had been "sealed", expunged, or otherwise stricken from the court records on any occasion other than this arrest,' Appellant responded in the negative. This response was obviously untrue in light of Appellant's 1987 arrest. Accordingly, this false information, coupled with the fact that Appellant had already received an ARD Disposition, prompted the District Attorney's Office to deny Appellant admittance into the program.
(Slip Op., Carpenter, J., 10/2/97, pp. 1-3; citations omitted.)
"Paramount to the proper implementation of any ARD program is to assure that inclusion/exclusion promotes one or both of the objectives sought to be achieved by the program's existence: protection of the public and/or the rehabilitation of the defendant." Commonwealth v. Darkow, 426 Pa. Super. 219, , 626 A.2d 1173, 1176 (1993), alloc. denied, Pa. , 642 A.2d 483 (1994). " he decision to submit case for ARD rests in the sound discretion of the district attorney." Id. at , 626 A.2d at 1174.
In Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985), our Supreme Court established the parameters of this prosecutorial discretion. "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 , 495 A.2d at 934. However, where the criteria for admission to ARD is "wholly, patently and without doubt unrelated to the protection of society and/or the likelihood of a person's success in rehabilitation", an abuse of discretion exists. Id. at , 495 A.2d at 935 (emphasis in original). Criteria "such as race, religion or other such obviously prohibited considerations", if considered by the district attorney, will constitute an abuse of discretion. Id. at , 495 A.2d at 935.
Appellant's arguments may be summarized as follows: as her previous ARD Disposition occurred over seven years ago and as the record regarding the Disposition has been expunged, consideration of her prior recor
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