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SCHEINERT v. HENDERSON

September 14, 1992

DENISE SCHEINERT, Petitioner,
v.
JAMES HENDERSON and J. ALLEN NESBITT, Respondents, and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA



The opinion of the court was delivered by: BY THE COURT; JAY C. WALDMAN

 WALDMAN, J.

 September 14, 1992

 I.

 Petitioner has filed a petition for a writ of habeas corpus and an accompanying motion for a stay of execution of her sentence or bail pending a decision on her petition. The petition and motion were filed shortly before the closing of the Clerk's office on Friday, September 4, 1992. Petitioner alleged that she had received notice that day of an order to commence the following morning a thirty day sentence for driving while intoxicated.

 A district court has the authority to grant bail to a state prisoner pending review and resolution of a habeas corpus petition. See In re Wainwright, 518 F.2d 173, 174 (5th Cir. 1975)(per curiam); Pethtel v. Attorney General of Indiana, 704 F. Supp. 166, 169 (N.D. Ind. 1989). Such authority should be exercised, however, only when a petitioner has presented a substantial meritorious constitutional claim and exceptional circumstances render the exercise of that authority necessary effectively to preserve the habeas remedy. See Landano v. Rafferty, No. 91-5336, slip op. at 22-23 (3d Cir. July 16, 1992). Such a circumstance is present where the length or duration of a sentence is so short that it likely will have been served before a resolution of the habeas petition. Id. at 23-24. It follows that a district court may stay execution of a sentence about to be served which is so short that to do otherwise could effectively impair the court's jurisdiction and nullify the habeas remedy for a petitioner with a substantial meritorious claim.

 The court was not in a position on Labor Day weekend adequately to assess the merits of petitioner's claim. It was apparent, however, that by the time the normal § 2254 review process would be completed, much or all of the petitioner's sentence may have expired. With the consent of counsel for the parties, the court entered a temporary stay of one week and provided for an accelerated disposition of petitioner's claim. The court set September 10, 1992 for hearing and argument on the habeas petition as well as the motion for a stay pending disposition of the petition. That proceeding has now been concluded.

 II.

 In the early hours of May 16, 1983, petitioner was arrested by an Upper Moreland Township police officer for driving under the influence of alcohol and a controlled substance. She was subsequently charged in an information with violating 75 Pa. C.S.A. § 3731(a)(1), (2) and (3), waived arraignment and entered a plea of not guilty. On November 15, 1983, petitioner appeared before the Montgomery County Court of Common Pleas and, consistent with Pa. R. Crim. P. 176-179, was admitted to an accelerated rehabilitative disposition program (ARD). *fn1"

 After January 15, 1983, acceptance by a defendant of ARD is treated as the equivalent of a conviction for purposes of sentence enhancement should defendant subsequently be arrested and convicted of driving while intoxicated. See 75 Pa. C.S.A. § 3731(e)(2). As such, a defendant convicted within seven years of an arrest resulting in ARD is subject to a mandatory minimum sentence of thirty days imprisonment. See 75 Pa. C.S.A. § 3731(e)(1)(ii).

 For reasons never adequately explained, the case "slipped between the cracks" in the Bucks County District Attorney's office following denial of the appeal, and petitioner was not notified to report to commence her sentence. Someone in the District Attorney's office "discovered" this situation in August of 1992 and obtained an order on September 1, 1992 directing petitioner to report to the Bucks County prison on September 4, 1992 to commence service of her sentence.

 III.

 Petitioner contends that the treatment by the legislature of participation in ARD as if it were a conviction is arbitrary, irrational and fundamentally unfair, and thus § 3731(e)(2) violates substantive due process. The essence of the substantive due process requirement is protection of individuals from arbitrary or capricious governmental action. See Daniels v. Williams, 1174 U.S. 327, 331 (1986). A law comports with substantive due process if it is rationally related to a legitimate governmental interest or objective. See U.S. V. Holland, 258 U.S. App. D.C. 236, 810 F.2d 1215, ...


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