Com. v. Melnyk

• Decision Date: 12 September 1988
• Citation: 548 A.2d 266,378 Pa.Super. 42
• Parties: , 57 USLW 2247 COMMONWEALTH of Pennsylvania v. Barbara J. MELNYK, Appellant.
• Court: Pennsylvania Superior Court

Page 266

548 A.2d 266

378 Pa.Super. 42, 57 USLW 2247

COMMONWEALTH of Pennsylvania v. Barbara J. MELNYK, Appellant.

Superior Court of Pennsylvania.

Argued June 7, 1988.

Filed Sept. 12, 1988.

Rosemary Dann, Asst. Public Defender, Wallingford, for appellant.

Vram Nedurian, Jr., Asst. Dist. Atty., Newtown Square, for Com., appellee.

Before McEWEN, OLSZEWSKI and CERCONE, JJ.

CERCONE, Judge:

Barbara Jane Melnyk appeals from the Judgment of Sentence imposed following a conviction on two counts of welfare fraud.

From September, 1980 to October, 1984, Melnyk was gainfully employed while receiving public assistance. Because she failed to report the earned income, she wrongfully obtained a total of $10,789.00 ($9,967.00 for public assistance and $822.00 for food stamps). Through her attorney, Melnyk requested placement on the accelerated rehabilitative disposition (hereinafter "ARD"). An ARD hearing was scheduled for April 16, 1986 at which time appellant appeared. For some unexplained reason, the hearing was not conducted. She again appeared on April 21, 1986 for a scheduled "back up trial date". At that time, appellant requested a continuance for the scheduling of an ARD hearing. ¹ At the April 21st hearing, appellant agreed to waive her Rule 1100 rights for any period of time involved in ARD proceedings, she asserted that she was willing and able to pay court costs for ARD, and that she was willing to make a good faith effort to pay restitution in the amount of $10,789.00. The ARD Division of the District Attorney's Office of Delaware County indicated that if Melnyk could demonstrate a present ability to pay restitution in the amount of $10,789.00 within the ARD period, she would be otherwise eligible for inclusion in the ARD program. Because Melnyk lacked the ability to pay restitution, the district attorney's office refused to recommend her as an appropriate ARD candidate. After reviewing her income and assets, the court, being satisfied that appellant lacked the present ability to pay restitution, denied her application for continuance and set the cause for trial. In a non-jury trial, she was found guilty of welfare fraud and sentenced to two years probation and ordered to pay restitution in the amount of $10,789.00. This appeal followed.

On appeal, Melnyk contends that the lower court and district attorney's office committed error of constitutional dimension. She argues that denying inclusion in the ARD program solely on the basis of an applicant's indigency violates the equal protection and due process clauses of the Fourteenth Amendment to the United States Constitution. U.S. Const., art xiv. Appellant also contends that the district attorney's office exceeded its authority granted by the Pennsylvania Rules of Criminal Procedure governing ARD treatment. See Pa.R.Crim.P., Rules 175-185, 42 Pa.C.S.A. Finally, appellant contends that the lower court abused its discretion in the sentence imposed. ²

I.

The ARD program provides a pretrial disposition of certain cases in which the attorney for the Commonwealth agrees to suspend prosecution for an agreed upon period of time in exchange for the defendant's successful participation in a rehabilitation program, the terms of which are to be determined by the court and applicable statutes. Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985). The program is governed by Rules 175 to 185, supra. Under the rules and relevant caselaw, the district attorney has the sole discretion to submit or refuse to submit a case for ARD. Id.; Commonwealth v. Kiehl, 353 Pa.Super. 353, 509 A.2d 1313 (1986). In Lutz, the district attorney's discretion was circumscribed as follows:

... the 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 this view of what is most beneficial for society and the offender. Compare Shade v. Commonwealth of Pennsylvania Department of Transportation, 394 F.Supp. 1237, 1242 (M.D.Pa.1975), citing Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962).

508 Pa. at 310, 495 A.2d at 935.

The district attorney's discretion in ARD placement is also circumscribed by the rules of criminal procedure. In Shade v. Commonwealth of Pennsylvania, Department of Transportation, supra, the District Court stated:

The conditions of the ARD program may be the same as may be imposed with respect to probation after conviction of a crime, including restitution and costs, and any other conditions agreed to by the parties, except that a fine may not be imposed and the period of the ARD program cannot exceed two years.

394 F.Supp. at 1240 (referring to Rule 182, supra ). The Sentencing Code, 42 Pa.C.S.A. §§ 9701-9781, provides guidelines for the imposition of probation as an alternative to incarceration. It grants the court wide discretion to attach reasonable conditions as terms of probation. However, the court may only order restitution "in an amount [defendant] can afford to pay". Id. § 9754(c). It is incumbent upon the court to determine the defendant's ability to make restitution and to order restitution which serves the dual purpose of achieving rehabilitation of the defendant as well as providing the complainant with some measure of redress. Commonwealth v. Erb, 286 Pa.Super. 65, 428 A.2d 574 (1981). See also Commonwealth v. Fuqua, 267 Pa.Super. 504, 508, 407 A.2d 24, 26 (1979) ("a court's concern that the victim be fully compensated should not overshadow its primary duty to promote the rehabilitation of the defendant").

Thus, while the district attorney has sole discretion to move for a defendant's admission into ARD, the prosecutor may not summarily reject a person from consideration for improper reasons. In the case sub judice, the district attorney admitted that, but for appellant's inability to make restitution within a two-year ARD period, she was fully suitable for ARD placement.

II.

Melnyk contends that the district attorney's office has made an impermissible distinction between two classes of individuals who are otherwise equally acceptable for ARD disposition: those who have the present ability to pay restitution in full within two years and those who, because of indigency and in spite of the willingness to make bona fide efforts to pay, do not have that same ability. She asserts that this impermissible distinction violates her constitutionally protected rights to equal protection and due process.

When reviewing a constitutional claim provided in the United States Constitution, we seek guidance from opinions emanating from the United States Supreme Court. While we have found no case which addresses the consideration of indigency in a pretrial disposition proceeding, there are numerous cases which have given extensive consideration to the rights of indigent persons in the criminal justice system. Several cases involve an indigent defendant's right to appeal. While affirming the principle that a state is under no obligation to provide any criminal defendant with an appeal, McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894), the Supreme Court has consistently held that if the state does provide such a procedure as a matter of right, it must be available to all defendants, regardless of financial ability.

In Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), the Supreme Court struck down an Illinois rule which allowed a convicted criminal defendant to present claims of trial error to the appellate court only if accompanied by a transcript of the testimony adduced at trial. The rule allowed no exception for indigent defendants, regardless of their financial ability to obtain such transcript. The Court in Griffin held that this discrimination violated the Fourteenth Amendment. Succeeding cases invalidated similar financial barriers to the appellate process. In Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963), the Court struck down an Indiana provision declaring that only a public defender can obtain a free transcript of a hearing on a coram nobis application. If the public defender declined to request one, the indigent prisoner seeking to appeal had no recourse. In Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963), the Court struck down a state rule that permitted an indigent to obtain a free transcript of the trial only if he satisfied the trial judge that his contentions on appeal would not be frivolous. The appealing defendant was in effect bound by the trial court's conclusions in seeking to review the determination of frivolousness, since no transcript or its equivalent was made available to him. In Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961), and Burns v. Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209 (1959), the Court determined that state-imposed financial barriers to the adjudication of a criminal defendant's appeal was violative of the Fourteenth Amendment.

Subsequently, the Supreme Court addressed the constitutionality of requiring a criminal defendant to undergo imprisonment solely because of his or her indigency. The Court again concluded that this constituted invidious discrimination in violation of the equal protection and due process clauses of the Fourteenth Amendment. In Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), the Court determined that imprisonment of an indigent solely because he was too poor to pay fines imposed by a state court for traffic offenses which were punishable by fines only, constituted intolerable discrimination in violation of the equal protection...