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COMMONWEALTH PENNSYLVANIA v. DENISE SCHEINERT (12/11/86)

filed: December 11, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
DENISE SCHEINERT, APPELLANT



Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Bucks County, No. 4940/84.

COUNSEL

Drew Salaman, Philadelphia, for appellant.

Stephen B. Harris, Assistant District Attorney, Warrington, for Commonwealth, appellee.

Cavanaugh, Wieand and Kelly, JJ. Kelly, J., joins this opinion and files a concurring opinion. Cavanaugh, J., joins this opinion and also the concurring opinion of Kelly, J.

Author: Wieand

[ 359 Pa. Super. Page 425]

Denise Scheinert was tried and found guilty of driving while under the influence of alcohol. She had previously been arrested and charged with the same offense in 1983, after the effective date of the mandatory sentence provisions of 75 Pa.C.S. § 3731(e). On that occasion, however, she had been accepted into the Accelerated Rehabilitation Disposition program (ARD), where she successfully completed a period of probation. When, on September 30, 1985, she appeared for sentencing for the later offense, the sentencing court treated her as a second offender and, consistent with the mandatory sentence provisions of 75 Pa.C.S. § 3731(e)(1)(ii), imposed a sentence of imprisonment for not less than thirty days nor more than one year.*fn1 On direct appeal from this judgment of sentence, Scheinert attacks the validity of the statutory provision which required the sentencing court to equate her prior participation in ARD with a first conviction. We find this argument lacking in merit and affirm the judgment of sentence.

[ 359 Pa. Super. Page 426]

The legislature, at 75 Pa.C.S. § 3731(e)(2), has provided as follows:

Acceptance of Accelerated Rehabilitative Disposition or any other form of preliminary disposition of any charge brought under this section shall be considered a first conviction for the purpose of computing whether a subsequent conviction of a violation of this section shall be considered a second, third, fourth or subsequent conviction.

Appellant contends that this provision is in conflict with ARD rules adopted by the Supreme Court and, therefore, invalid. The adoption of general rules governing practice and procedure, she argues, has been vested exclusively in the Supreme Court by Article 5, section 10(c) of the Pennsylvania Constitution.

The Supreme Court's rationale for the ARD rules which it adopted was explained as follows:

The purpose of this program is to eliminate the need for lengthy motions, trials and other court proceedings, in cases which are relatively minor or which involve social or behavioral problems which can best be solved by programs and treatments rather than by punishment. In many cases, legal defenses may be available which would result in acquittal or delay in disposition of the charges. When immediate treatment is needed, however, defendant and counsel may be willing to have defendant undergo such treatment without an adjudication of guilt.

PA.R.Crim.P. 185 comment. The rules which the Court adopted,*fn2 however, are silent with respect to the collateral consequences of a defendant's participation in ARD. It must be conceded, as appellant calls to our attention, that this Court has held that participation in an ARD program may not be deemed a conviction for purposes of impeaching a witness. Commonwealth v. Krall, 290 Pa. Super. 1, 434 A.2d 99 (1981). On the other hand, in Commonwealth v. ...


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