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COMMONWEALTH PENNSYLVANIA v. SEAN P. BURKE (06/03/86)

SUPERIOR COURT OF PENNSYLVANIA


submitted: June 3, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
SEAN P. BURKE, APPELLANT

Appeal from the Judgment of Sentence November 8, 1985 in the Court of Common Pleas of Mercer County, Criminal No. 448 Criminal 1984 OTN B 231194-5.

COUNSEL

Robert G. Kochems, Assistant Public Defender, Mercer, for appellant.

James P. Epstein, Assistant District Attorney, Sharon, for Commonwealth, appellee.

Rowley, Cercone and Del Sole, JJ. Rowley, J., dissented.

Author: Del Sole

[ 356 Pa. Super. Page 401]

Appellant was placed in an Accelerated Rehabilitative Disposition program (ARD) after having been charged with a violation of 75 Pa.C.S.A. ยง 3731.*fn1 Appellant's participation in the program was supervised by an agent of the Pennsylvania Board of Probation and Parole.

On November 28, 1984, the court received a memo from the Court Administrator indicating Appellant had failed to pay required fees or attend required counseling and driving classes. The court subsequently received a memo from Appellant's parole agent alleging Appellant's violation of ARD conditions and requesting the court conduct a hearing on the alleged violations. A revocation hearing was held on December 19, 1984, the court entered an order withdrawing the order which placed Appellant in the ARD program thereby removing Appellant from the program and further ordering the Commonwealth to proceed with the prosecution on the charges which gave rise to Appellant's admission into ARD. Prior to trial, Appellant filed an Omnibus Pretrial Motion, joined in by the District Attorney, wherein it was asserted that the Appellant was improperly removed from ARD because no petition for removal had been filed by the District Attorney. Following a hearing, the Motion

[ 356 Pa. Super. Page 402]

    was denied and the Appellant proceeded to trial where he was found guilty. A Motion for New Trial and for Reinstatement of ARD was filed and denied. Sentence was imposed and this appeal ensued.

The Appellant and the Commonwealth contend that a participant can be removed from an ARD program pursuant only to a motion filed by the District Attorney. We agree.

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 932. 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 [312], 495 A.2d at 932.

Commonwealth v. Brown, 350 Pa. Super. 453, 455, 504 A.2d 927, 928 (1986).

Once an individual is participating in ARD, Pa.R.Crim.P. 184(a) provides:

[i]f the attorney for the Commonwealth files a motion alleging that the defendant during the period of the program has violated a condition thereof, or objects to the defendant's request for an order of discharge, the judge who entered the order for A.R.D. may issue such process as is necessary to bring the defendant before the Court.

Id.

In the case sub judice, not only did the attorney for the Commonwealth not file a motion pursuant to Pa.R.Crim.P. 184 but rather opposed the scheduling of the revocation hearing based on a petition of a parole agent. Our Supreme Court has held "that the rules of this Court governing ARD, . . . are the sole applicable procedure by which a person charged with drunk driving may be admitted to ARD." Commonwealth v. Lutz, 508 Pa. at 312, 495 A.2d at 936. Similarly, we conclude that the rules of Criminal

[ 356 Pa. Super. Page 403]

Procedure governing ARD are the sole applicable procedure by which a person alleged to have violated the conditions of an ARD program may be removed.

Because the issue of whether or not Appellant should have been removed from the ARD program was not properly before the court pursuant to Pa.R.Crim.P. 184, the judgment of sentence is vacated and Appellant's participation in the ARD program should be reinstated.*fn2

Judgment of sentence is vacated and the prior order of October 4, 1984 placing Appellant in the ARD program is reinstated. Jurisdiction relinquished.

Disposition

Judgment of sentence is vacated and the prior order of October 4, 1984 placing Appellant in the ARD program is reinstated. Jurisdiction relinquished.


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