with § 3731(e)(1), she was sentenced on September 30, 1985 to thirty days imprisonment. She argues that in mandating an enhanced minimum sentence because of the prior ARD, the statute violates due process and constitutes a bill of attainder. The Common Pleas Court rejected her arguments as did the Superior Court, and her appeal to the Pennsylvania Supreme Court was denied. See Commonwealth v. Scheinert, 359 Pa. Super. 423, 519 A.2d 422 (1986), appeal denied, 517 Pa. 606 (1987).
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.
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, 1220-22 (D.C. Cir.), cert. denied, 481 U.S. 1057, 95 L. Ed. 2d 854, 107 S. Ct. 2199 (1987); Rogin v. Bensalem Twp., 616 F.2d 680, 689 (3d Cir. 1980).
Petitioner argues that it is patently unfair and irrational for the legislature effectively to presume guilt on the part of a defendant on ARD in the absence of any adjudication of the diverted charge or any independent factual demonstration of guilt. Given the significant burdens imposed upon a defendant electing ARD, it may not be irrational to assume that he or she would not choose this course unless faced with the likely prospect of conviction in the alternative.
Nevertheless, it must be assumed that an innocent person wrongly charged with driving under the influence might elect ARD, and thus the court will not uphold the statute on such a basis.
The legislature has not decreed that acceptance of ARD is a conviction, and the Commonwealth generally does not treat it as such. See Commonwealth v. Feagley, 371 Pa. Super. 593, 597-98, 538 A.2d 895 (1988); Commonwealth v. Becker, 366 Pa. Super. 54, 59, 530 A.2d 888 (1987). What the legislature has provided is that for purposes of triggering a mandatory minimum thirty day sentence for a defendant who has been convicted of driving under the influence, participation in an ARD program shall be considered, that is, treated the same as, a prior DUI conviction.
The purpose of the ARD program is to try to rehabilitate persons who appear to have an alcohol or drug problem without imposing the stigma and more severe potential consequences of a formal public adjudication. See Feagley, 371 Pa. Super. at 598. The Commonwealth clearly has a legitimate interest in combatting aggressively the perils posed by persons who drive under the influence of alcohol or other drugs.
It is rational for the legislature to conclude that persons who choose to drive while intoxicated after being placed under court supervision, attending a highway safety school, losing their driving privileges, undergoing counseling and paying costs are less deterrable and more dangerous than one who drives while intoxicated without any prior exposure to such a criminal justice system program. See Becker, 366 Pa. Super. at 62.
If the legislature constitutionally can provide that a convicted drunk driver who has a prior conviction or who has participated in an ARD program shall receive a minimum penalty of thirty days incarceration, it may provide that for the purpose of triggering such a penalty participation in ARD shall be considered or treated as a conviction.
In concluding that § 3731(e)(2) is not fundamentally unfair, the Superior Court in this case noted that a defendant voluntarily elects ARD and is advised of the collateral potential future sentencing consequences of a subsequent DUI conviction. See Scheinert, 359 Pa. Super. at 428. It is unclear upon what the Court relied in making the latter observation. It merely cites to an earlier Superior Court case in which the same observation was made without reference or citation to anything. See Commonwealth v. Frost, 342 Pa. Super. 173, 178, 492 A.2d 448 (1985). The court admitting a defendant to ARD is not legally required to advise him or her of the potential future sentencing consequences. Commonwealth v. Reeb, 406 Pa. Super. 28, 35-36, 593 A.2d 853 (1991). Subsequent to its opinion in Scheinert, the Superior Court expressly declined to decide whether an ARD program participant who was not in fact advised of the effect of § 3731 (e)(2) may be sentenced pursuant to that provision. See Becker, 366 Pa.Super. at 63 n.4.
Respondent produced evidence of the practice of the Montgomery County District Attorney's office in November of 1983 from which it could be inferred, consistent with Fed. R. Evid. 406, that the assistant district attorney present at petitioner's ARD hearing advised her and the other defendants present of the potential future sentencing consequences of accepting ARD. The evidence that petitioner did not in fact receive or comprehend such advice is equally compelling, although petitioner stopped short of testifying that had she been so advised, she would not have accepted ARD. She merely testified that she likely would have had further discussion with her attorney.
While the court believes that it would be desirable to include a notification of the future potential sentencing effects of participation in ARD, see Reeb, 406 Pa. Super. at 36, it does not believe that the failure to require or provide notice of such a collateral consequence of a decision to avert prosecution by electing ARD renders § 3731(e)(2) unconstitutional on its face or as applied. This statute had been enacted and published for almost a year prior to petitioner's election of ARD and for over two years at the time she drove drunk in 1985.
In an analogous context where a defendant is waiving a right to trial and pleading guilty, and indeed typically giving up more and benefitting less than a defendant electing ARD, the court is not constitutionally required to warn him or her of the collateral consequences thereof. See, e.g., U.S. v. Edwards, 911 F.2d 1031, 1035 (5th Cir. 1990)(failure to advise of enhancing effect on subsequent sentence); U.S. v. Romero-Vilea, 850 F.2d 177, 179 (3d Cir. 1988)(failure to advise defendant that he would face deportation); Torrey v. Estelle, 842 F.2d 234, 235 (9th Cir. 1988)(failure to explain to plea bargaining defendant that if state youth authority determined he was not amenable to treatment, he could be resentenced to up to life imprisonment as adult); U.S. v. Persico, 774 F.2d 30, 33 (2d Cir. 1985)(failure to advise plea bargaining defendant that plea could be used to establish predicate offense in RICO investigation pending before grand jury, which could result in substantial additional penalties); Wright v. U.S., 624 F.2d 557, 561 (5th Cir. 1980) (failure to explain potential enhancement effect on subsequent sentence); Cuthrell v. Director, Patuxent Institution, 475 F.2d 1364, 1366 (4th Cir.), cert. denied, 414 U.S. 1005, 38 L. Ed. 2d 241, 94 S. Ct. 362 (1973).
Petitioner also contends that § 3731(e)(2) constitutes a bill of attainder and thus violates Article I, § 10 of the Constitution. The essence of a bill of attainder is the legislative imposition of punishment on designated individuals without a judicial determination of blame. See Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841, 847, 82 L. Ed. 2d 632, 104 S. Ct. 3348 (1984); Nixon v. Administrator of General Services, 433 U.S., 425, 468, 53 L. Ed. 2d 867, 97 S. Ct. 2777 (1977). Section 3731(e)(2) does not impose punishment for alleged crimes resulting in ARD. Rather, it prescribes punishment for persons convicted in a judicial proceeding of a crime after being afforded the opportunity to participate in an ARD program. The provision does not inflict punishment for the underlying unadjudicated arrest prior to ARD, although as the Superior Court in this case noted, prior unadjudicated arrests may be considered at sentencing as long as guilt is not inferred therefrom. Scheinert, 359 Pa. Super. at 427 (Kelly, J. concurring).
Section 3731(e)(2) is not a bill of attainder.
In treating acceptance of ARD as equivalent to a conviction for the sole purpose of triggering a minimum sentence requirement, the Pennsylvania legislature did not act arbitrarily, irrationally or in disregard of notions of fundamental fairness. On its face and as applied to petitioner, § 3731(e)(2) comports with due process requirements.
The statute does not penalize conduct which results in an unadjudicated arrest. Rather, it mandates consideration of the fact that one convicted of drunk driving has participated in an ARD program in determining the minimum penalty for the offense resulting in conviction. It is not a bill of attainder.
As petitioner has not presented meritorious constitutional claims on which she may prevail, she is not entitled to a stay or bail. The petition for a writ of habeas corpus also will be denied and this action dismissed. Appropriate orders will be entered.
AND NOW, this 14th day of September, 1992, upon consideration of Petitioner Scheinert's petition for a writ of habeas corpus and respondent's response thereto and following an opportunity for hearing and argument thereon, consistent with the accompanying memorandum, IT IS HEREBY ORDERED that said petition is DENIED and the above action is DISMISSED.
There is no probable cause for appeal.
BY THE COURT:
JAY C. WALDMAN, J.
AND NOW, this 14th day of September, 1992, upon consideration of petitioner Scheinert's motion for stay or enlargement on bail and respondent's response thereto and following an opportunity for hearing and argument thereon, consistent with the accompanying memorandum, IT IS HEREBY ORDERED that said Motion is DENIED.
BY THE COURT:
JAY C. WALDMAN, J.