Commonwealth v. Jenkins

305 A.3d 50

COMMONWEALTH of Pennsylvania

v.Benjamin Jordan JENKINS, Appellant

No. 1665 MDA 2022

Superior Court of Pennsylvania.

Argued August 30, 2023

Filed: October 19, 2023

Appeal from the Judgment of Sentence Entered November 18, 2022, In the Court of Common Pleas of Adams County, Criminal Division, at No(s): CP-01-CR-0001044-2021, Thomas R. Campbell, J.

Steve Rice, Gettysburg, for appellant.

Gerry Scott IV, Assistant District Attorney, Gettysburg, for appellee.

BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

Appellant Benjamin Jordan Jenkins appeals from the judgment of sentence entered by the Court of Common Pleas of Adams County after the trial court convicted Appellant of Driving Under the Influence of a Controlled Substance (DUI). Appellant claims that the trial court erred in removing Appellant from the Accelerated Rehabilitative Disposition Program (ARD). After careful review, we affirm.

The trial court summarized the relevant factual background and procedural history of this case as follows:

On May 16, 2021, an incident occurred which resulted in this case of driving under the influence of a controlled substance as an ungraded misdemeanor and first offense.

On July 31, 2021, Appellant was operating a motor vehicle which was stopped by the Pennsylvania State Police. Appellant was again arrested for driving under the influence of a controlled substance and was taken to the hospital where blood was drawn with Appellant’s consent. That blood sample was then sent to NMS Laboratories for analysis. Charges were not immediately filed, pending the lab results.

On August 17, 2021, Appellant waived his preliminary hearing in this case.

On September 24, 2021, at formal arraignment in this case, Appellant applied for and was admitted to the ARD-DUI Program for a term of 9 months. At that time, the [trial court] was not made aware of, and the Commonwealth did not know about, Appellant’s arrest on July 31, 2021 for a second offense DUI. Neither Appellant nor Counsel disclosed that arrest to the [trial court] during Appellant’s admission into the ARD- DUI Program in this case.

On March 22, 2022, while Appellant was on ARD in this case[,] a criminal complaint was filed by the Pennsylvania State Police against Appellant setting forth charges for a second offense DUI based on the July 31, 2021 incident.

On April 7, 2022, the Commonwealth promptly moved to revoke Appellant from the ARD Program in this case on the basis of the newly filed criminal complaint for the previously undisclosed DUI arrest occurring shortly before Appellant’s application to and admission into the ARD Program.

An ARD review hearing was scheduled for April 28, 2022. At Defense Counsel’s request[,] the ARD review hearing was continued to May 26, 2022.

On May 26, 2022, at an ARD review hearing on the record, Defense Counsel was given an opportunity to be heard. Defense Counsel referenced his email exchange to [the trial court that] essentially acknowledged the timeline set forth above. At the ARD review hearing, Appellant did not argue or contest that while in the ARD-DUI Program[,] he was charged with a second DUI offense for the incident that occurred on July 31, 2021, which offense was before Appellant was admitted to ARD in this case.

Trial Court Opinion (T.C.O.), 1/4/23, at 2-3.

At the conclusion of the review hearing, the trial court entered an order terminating Appellant’s participation in ARD as a result of the new DUI charges filed against Appellant after he had been admitted to ARD on the instant charges. Al- though it was undisputed that the new charges were based on Appellant’s second DUI arrest that occurred before Appellant’s application for ARD on the instant charges, the trial court emphasized that Appellant’s failure to disclose his second DUI arrest and the possibility that he would be charged with a second DUI, made Appellant unsuitable for ARD.

Appellant proceeded to a bench trial conducted on November 18, 2022 at which the trial court convicted Appellant of DUI – controlled substance pursuant to 75 Pa.C.S.A. § 3802(d)(1)(i) as an ungraded misdemeanor. The same day, the trial court sentenced Appellant to six months’ probation with restrictive DUI conditions (ten days’ house arrest). Appellant filed a timely appeal and complied with the trial court’s direction to file a concise statement of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).

Appellant raises one issue for our review on appeal:

Did the lower court err in granting the Commonwealth’s Motion to Revoke ARD based on new charges filed after ARD began for an incident involving a DUI arrest occurring before ARD began?

Appellant’s Brief, at 4.

[1, 2] Our standard of review is as follows: "[t]ermination of ARD participation is charged to the sound discretion of the trial court. On appeal we will only reverse an ARD termination where the court abused its discretion or committed an error of law." Commonwealth v. Lebo, 713 A.2d 1158, 1161 (Pa.Super. 1998) (citations omitted).

[3] ARD is a pretrial diversionary program that "suspends formal criminal proceedings before conviction and provides the accused with certain rehabilitative conditions, the completion of which results in the dismissal of the pending criminal charges and a clean record for the defendant." J.F. v. Dep’t of Hum. Servs., 664 Pa. 601, 245 A.3d 658, 661-62 (2021) (citing Pa.R.Crim.P. 314-319). ARD was established to promptly resolve "relatively minor cases involving social or behavioral problems which can best be solved by programs and treatments rather than by punishment." Commonwealth v. Armstrong, 495 Pa. 506, 434 A.2d 1205, 1208 (1981) (citation and internal quotation marks omitted). "[T]he procedural rules governing the ARD program contemplate that ordinarily the defendants eligible for the ARD program are first offenders who lend themselves to treatment and rehabilitation rather than punishment and that the crime charged is relatively minor and does not involve a serious breach of the public trust." Commonwealth v. Verbeck, — Pa. —, 290 A.3d 260, 265 (2023) (citing Pa.R.Crim.P. Ch. 3, Explanatory Cmt.).

Our courts have emphasized that "[a]dmission to an ARD program is not a matter of right, but a privilege." Commonwealth v. Jagodzinski, 739 A.2d 173, 175 (Pa.Super. 1999) (quoting Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928, 933 (1985)). In Lutz, the Supreme Court held that the district attorney has "the sole discretion in any criminal case, including drunk driving cases, to move for the admission of a defendant into ARD." Lutz, 495 A.2d at 932. See also Armstrong, 434 A.2d at 1208 (noting that "[o]ur rules give district attorneys broad discretion to select which crimes and which individuals qualify for diversion into ARD")). The Supreme Court has acknowledged that:

[o]ur restrictive approach to admission to ARD programs is intentional and purposeful, for it ensures that no criminal defendant will be admitted to ARD unless the party to the case who repre-sents the interests of the Commonwealth, the district attorney, has made the determination that a particular case is best handled by suspending the prosecution pending the successful completion of a diversionary ARD program. Society has no interest in blindly maximizing the number of ARD’s passing through the criminal justice system, and the criminal defendant has no right to demand that he be placed on ARD merely because any particular offense is his first. Rather, society, 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.

Lutz, 495 A.2d at 933. As such, this Court has specifically held that "[s]ince 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." Commonwealth v. Stranges, 397 Pa.Super. 59, 579 A.2d 930, 932 (1990).

Further, our Supreme Court has high-lighted the seriousness of the crime of drank driving and its threat to society, rejecting any suggestion that lenient treatment of drank drivers is warranted due to the fact that such a crime does not require criminal intent. Lutz, 495 A.2d at 936. In addition to the fact that such a view conflicts with "clear legislative mandate," the Supreme Court asserted that:

the essence of the seriousness of the crime of drank driving is that it is a lifethreatening act. The fact that the drunk’s state of mind may technically be described as grossly negligent or grossly reckless, not "driving with the intent to kill," does not negate the fact that as a result of his recklessness, innocent people and the drank himself may be and often are injured or killed. In the face of the rather simple realities associated with drunk driving-that terrible costs in human life, injury and potential are exacted for no reason except the transitory pleasure of the drank-it would be folly to encourage those who consume alcohol to believe that if they are caught driving while intoxicated, society will take a light view of it.

Id.

Our rules of criminal procedure provide that the Commonwealth may make a motion for the removal of a defendant from ARD upon the violation of a condition of the program. Pa.R.Crim.P. 318(a). In determining whether ARD participation should be terminated, the trial court must provide the defendant with an opportunity to be heard. Pa.R.Crim.P. 318(c). "If the judge finds that the defendant has committed a violation of a condition of the program, the judge may order, when appropriate, that the program be terminated, and that the...