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COMMONWEALTH PENNSYLVANIA v. REGIS BROWN (01/31/86)

filed: January 31, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
REGIS BROWN, APPELLANT



Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, No. CC 8405420.

COUNSEL

Stanton D. Levenson, Pittsburgh, for appellant.

Joel M. Kaufman, Assistant District Attorney, Pittsburgh, for Com., appellee.

Wickersham, Wieand and Beck, JJ.

Author: Wieand

[ 350 Pa. Super. Page 454]

Regis Brown was tried non-jury and was found guilty of driving while under the influence of alcohol in violation of 75 Pa.C.S. ยง 3731(a)(1). After the guilty verdict had been recorded, Brown requested orally that he be placed in the ARD program. His request was denied because it was untimely. In post-trial motions, Brown repeated his request that he be included in the ARD program and alleged that his pre-trial counsel had been ineffective for failing to file a pre-trial motion to compel the District Attorney to nominate him for the ARD program. The post-trial motions were also denied, and Brown was sentenced to pay a fine and undergo imprisonment for not less than forty-eight hours nor more than six months. On direct appeal from the judgment of sentence, Brown argues that his pre-trial counsel was ineffective for failing to move pre-trial to compel his acceptance into the ARD program and that the trial court, in any event, committed error in refusing to compel the

[ 350 Pa. Super. Page 455]

    district attorney to accept him into the ARD program in response to his post-trial request. We reject these arguments and affirm the judgment of sentence.

In Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985), the Supreme Court considered whether a person charged with driving while under the influence of alcohol might be admitted into an ARD program over objection by the district attorney. The Court held that "no criminal defendant, including a person charged with drunk driving, may move his own admission to ARD." Id., 508 Pa. at 312, 495 A.2d at 936. Instead, the Court concluded, the several district attorneys "have the sole discretion . . . to move for the admission of a defendant into ARD." Id., 508 Pa. at 306, 495 A.2d at 932.

[T]he 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 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., 508 Pa. at 310, 495 A.2d at 935. See also: Commonwealth v. Boerner, 268 Pa. Super. 168, 407 A.2d 883 (1979), appeal dismissed, 491 Pa. 416, 421 A.2d 206 (1980). Cf. State v. Dalglish, 86 N.J. 503, 506, 432 A.2d 74, 75 (1981) (prosecutorial decision denying admission into pretrial intervention program subject to review for patent and gross abuse of discretion, i.e., subverting the goals underlying the pretrial intervention program).

There was no abuse of discretion by the District Attorney of Allegheny County in this case. Although his though processes do not appear on the record, two significant facts do appear. While appellant was awaiting trial ...


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