Commonwealth v. McCabe

265 A.3d 1279

COMMONWEALTH of Pennsylvania, Appellee

v.Joseph MCCABE, Appellant

No. 50 MAP 2020

Supreme Court of Pennsylvania.

Argued: March 10, 2021

Decided: December 22, 2021

Andrew Chapman Christy, Esq., ACLU of Pennsylvania, for Amicus Curiae ACLU of Pennsylvania.

Peter E. Kratsa, Esq., MacElree Harvey, Ltd., West Chester, for Amicus Curiae PA Association of Criminal Defense Lawyers.

James Christopher Martin, Esq., Devin Michael Misour, Esq., Reed Smith LLP, Pittsburgh, for Amicus Curiae ACLU, Equal Justice Under the Law, PA Legal Aid Network, PA Assn of Crim Defense Lawyers, PD Assn. of PA.

Katherine Elizabeth Ernst, Esq., for Appellant.

Robert Martin Falin, Esq., Stanley Joseph Konoval, Esq., Kevin R. Steele, Esq., Montgomery County District Attorney's Office, Norristown, for Appellee.

BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE MUNDY

In this appeal by allowance, we consider whether a problem-solving court, in this case a Veterans Treatment Court (VTC), created pursuant to 42 Pa.C.S. § 916¹ is subject to Chapter 3 of the Pennsylvania Rules of Criminal Procedure (the Rules) governing Accelerated Rehabilitative Disposition (ARD). We also consider whether Appellant, Joseph McCabe, due to his inability to fully pay restitution, was denied the full benefit of the problem-solving court in contravention of his rights to due process and equal protection under the Fourteenth Amendment of the United States Constitution.

I - Factual and Procedural Background

We begin by summarizing the factual and procedural history of this case. Following the filing of a criminal complaint on February 19, 2016, Appellant was arrested on charges of theft by unlawful taking² and receiving stolen property³ in connection with the April 2015 taking of a collection of gold coins from the home of Thomas and Kathy Mohn in Upper Merion, Montgomery County, Pennsylvania, with whom Appellant had been staying. Montgomery County had instituted a VTC Program in 2011, the terms of which are set forth in the Montgomery County Veterans Treatment Court Policy and Procedural Manual (2011).⁴ Appellant applied for participation in the VTC and was accepted into the program. As a condition thereof, he entered an open plea to the theft charge graded as a third-degree felony on April 24, 2017. The VTC's order accepting the plea noted that sentence would be deferred and, as a condition, that a restitution hearing would be scheduled. VTC order, 4/24/17, at 1. A restitution hearing was held on August 14, 2017, after which the VTC ordered on January 2, 2018, that restitution of $34,857.24 be a condition of Appellant's sentence.⁵ During the course of the VTC program, Appellant made regular payments toward restitution in accordance with the VTC's order. Appellant successfully completed the requirements and conditions of the VTC program and following his successful completion a sentencing hearing was held on December 3, 2018.⁶ The court reviewed the sentencing guidelines and acknowledged Appellant's success in the VTC program:

You have done a remarkable job in Veteran's Court. You have served as a role model. You have been compliant with everything that we asked of you. That shows me you are capable of doing better. You have it in you. But this was a very serious crime.

N.T., 12/3/18, at 21. The trial court proceeded to sentence Appellant to a two-year term of probation. Appellant filed a timely motion to reconsider the judgment of sentence which the trial court denied on December 14, 2018. Appellant filed a timely appeal to the Superior Court.⁷

The Superior Court noted the common thread among Appellant's issues was a challenge to the restitution component of his sentence. As such the court reviewed it as a challenge to the legality of his sentence, applying a plenary review for any error of law. The Superior Court noted its standard was to ascertain the intent of the legislature by applying a statute's plain language. Only when such language is ambiguous or leads to a patently absurd result will other interpretive tools be applied. Commonwealth v. McCabe , 230 A.3d 1199, 1203 (citing Commonwealth v. Hall , 622 Pa. 396, 80 A.3d 1204, 1211 (2013) ). Appellant first contended that the VTC Manual fails to comply with Chapter 3 of the Rules, pertaining to ARD, which, in his view, governs Section 916 problem-solving courts. Appellant argued that problem solving courts, including the VTC in this case, are merely specific subsets of ARD and that Chapter 3 was intended to furnish the procedure to be followed. The Superior Court conceded the similarities between the diversionary programs of problem-solving courts and ARD, noting both hold cases in abeyance to afford treatment or supervision options to defendants. Id. at 6. But the court also noted the significant differences between the respective programs. These differences include that for ARD the discretion to submit a case to the program is exclusive to district attorneys, while a team of stakeholders makes decisions pertaining to a defendant's participation in a VTC. This is due in part to the greater treatment-focused aims that problem-solving courts are designed to address. Need for treatment is a requirement for VTC participation but need not be a factor in ARD participation. VTC participation is not limited to first time offenders as for the most part is ARD. Additionally, participation in the VTC program requires an entry of a plea, while ARD is a pre-adjudication program. Further, successful completion by a defendant of an ARD program requires dismissal of the charges he or she is facing, whereas by successfully completing the VTC program, a defendant "may have the court consider dismissing or reducing" the underlying charges. Id . (quoting VTC Manual at 8).

Based on these differences, the Superior Court rejected Appellant's interpretation that all problem-solving courts are subsets of ARD to be governed by Chapter 3 of the Rules. The court held that the absence of language in Chapter 3 expanding the definition of ARD to include other diversionary programs and problem-solving courts belied Appellant's interpretation. The Superior Court further held Chapter 3's language was clear and unambiguous that ARD and other diversionary programs are distinct. Id. at 8. The absence of special rules promulgated to apply to problem-solving courts authorized under Section 916 cannot result in expanding Chapter 3 of the Rules to apply by default. To do so, the Superior Court held, would violate the separation of powers by having the judiciary effectuate changes and definitions the legislature declined to adopt. Id. at 8-9. The court held that even if the language employed in Chapter 3 could be deemed ambiguous, the differences in the programs weigh against Chapter 3 governing VTCs.

The Superior Court also rejected Appellant's second claim that the trial court's failure to dismiss his charges was based on his inability to fully pay restitution during the term of the program in violation of his due process and equal protection rights. Appellant relied on Commonwealth v. Melnyk , 378 Pa.Super. 42, 548 A.2d 266 (1988), in which the Superior Court held that a petitioner's eligibility to enter an ARD program may not be denied based on indigency where the petitioner demonstrates a bona fide willingness to pay restitution according to his or her means. The Superior Court distinguished Melnyk as pertaining to admission into an ARD program. In this case, Appellant applied and was admitted into the VTC. The agreement he signed included the condition that "fines, costs, and restitution must be paid in full." McCabe , 2018 WL 1724871 at 11-12. In these circumstances, the fundamental fairness concerns in Melnyk were not implicated. The Superior Court also reviewed the statutory directives for restitution to be imposed as a direct sentence or as a condition of probation. Under Pa.C.S. § 1106, a sentencing court is mandated to impose restitution without regard to ability to pay. A defendant's ability to pay only becomes relevant if there is a subsequent default of the restitution order. Id. at 14 (citing Commonwealth v. Colon , 708 A.2d 1279, 1284 (Pa. Super. 1998) ). Pursuant to the plain language of these provisions, the Superior Court concluded Appellant was not denied due process or equal protection by the trial court's imposition of restitution without regard to his inability to pay the same in full during the VTC program's duration.

Finally, the Superior Court rejected Appellant's contention that the trial court's restitution order was illegal because it conducted a restitution hearing prior to sentencing. Appellant argued that Section 1106(c)(2) requires the amount of restitution must be determined at the time of sentencing. The cases relied on by Appellant disapproved of sentences entered that left the determination of the amount of restitution to a later date or deferred such determination. While the amount of restitution was determined in this case prior to sentencing as part of Appellant's participation in the VTC program, that did not violate Section 1106 ’s directive that the amount of restitution be determined at sentencing. Here the amount was defined at the time of sentencing and the sentence with respect to restitution was not open-ended, indefinite, or speculative.

Appellant filed a petition for allowance of appeal with this Court, which we granted to review the following questions.

Is the pretrial disposition program Veterans Treatment Court controlled by Chapter 3 of the Rules of Criminal Procedure?

Was [Appellant] impermissibly denied full benefits of the Veterans Treatment Court program, namely a dismissal of charges, based upon his inability to pay full restitution, in violation of his Fourteenth Amendment right to Due Process and Equal Protection under the United States Constitution?

II – Veterans Treatment Court

Appellant argues that both sources of statutory authority for a court to impose...