Does Chapter 3 of the Rules of Criminal Procedure Apply to Veterans Treatment Court?

Commonwealth v. McCabe, 230 A.3d 1199 (Pa. Super. 2020), allocatur granted Aug. 25, 2020, appeal docket 50 MAP 2020

In a case of first impression, the Pennsylvania Supreme Court will consider whether Veterans Treatment Court is controlled by Chapter 3 of the Rules of Criminal Procedure, and if not, whether a trial court’s failure to conduct an ability to pay hearing violates the right to due process and equal protection under the United States Constitution.

McCabe was charged with Theft By Unlawful Taking and Receiving Stolen Property for stealing a tackle box containing various pieces of precious metals, including gold coins, from an acquaintance. McCabe entered an open guilty plea to the Theft By Unlawful Taking charge as a condition of enrolling in the Montgomery County Veterans’ Treatment Court Program (VTC). The trial court held a restitution hearing and ordered McCabe to pay restitution in the amount of $34,857.24, based on the value of the coins stolen, as a condition of his sentence. McCabe paid the required monthly restitution amount beginning on the date the order was entered. Following his successful completion of the VTC program, the trial court sentenced McCabe to a period of two-years probation. The trial judge informed McCabe that, although his probation period would end within two years, the restitution order would stay in effect until paid in full; however, the judge did not make the previously ordered restitution part of McCabe’s probation. McCabe appealed, challenging the restitution component of his sentence. In particular, McCabe argued that Chapter 3, the statutory authority for ARD, governs all diversionary programs, including VTC, and therefore the trial court erred in failing to conduct an ability to pay hearing before imposing restitution. Additionally, McCabe argued that the trial court’s distinction between two classes of individuals – those who have the present ability to pay restitution in full within two years, and those who, because of indigency, do not have the ability – violates due process and equal protection under the U.S. Constitution. In support, McCabe analogized his case with Superior Court’s decision in Commonwealth v. Melnyk, 548 A.2d 266 (1988) in which Superior Court held:

[I]n ARD determinations, the district attorney and the court must inquire into the reasons for the petitioner’s inability to pay restitution. If the petitioner shows a willingness to make a bona fide effort to pay whole or partial restitution, the State may not deny entrance to the ARD program. If the petitioner has no ability to make restitution despite sufficient bona fide efforts to do so, the State must consider alternative conditions for admittance to and completion of the ARD program. To do otherwise would deprive the petitioner of [his] interest in repaying [his] debt to society without receiving a criminal record simply because, through no fault of [his] own, [he] could not pay restitution. Such deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment.

Slip op. at 10, quoting Melnyk, at 272.

Superior Court held that, “absent clear authority or a contrary directive by our Supreme Court, … Chapter 3 does not govern Veterans Treatment Court.” Slip op. at 17. The court reasoned that VTC is not governed by Chapter 3 because Chapter 3 mentions only ARD and “no language exists expanding the scope of this Chapter to other diversionary programs or problem solving courts” and for the court “[t]o expand the scope of Chapter 3 to include all diversionary programs would conflict with the most basic principles surrounding the separation of powers.” Slip op. at 8. Further supporting the conclusion that Chapter 3 does not apply to VTC, Superior Court found that “the differences in the framework between ARD and VTC reflect the intent to separate ARD from other diversionary programs.” Slip op. at 10. As to McCabe’s constitutional challenges, Superior Court distinguished McCabe’s case from Melnyk based on the differences between ARD and VTC, reasoning that:

First, the appellant in Melnyk challenged her exclusion from ARD. As discussed above, Veterans Treatment Court, absent authority to the contrary, is not ARD. Further, unlike the appellant in Melnyk, Appellant was not denied admission into a diversionary program. Rather, Appellant sought and was granted admission into Veteran’s Treatment Court. As part of the VTC program, Appellant — as well as the presiding judge and the court coordinator — signed the “Agreement to Participate in Veteran’s Treatment Court, Montgomery County PA” (Agreement), in which Appellant agreed to numerous conditions “to make a plan” that “lets [Appellant] be part of the Montgomery County Veteran’s Treatment Court (VTC).” Ex. D-2. Among the conditions, the Agreement proscribes Appellant from traveling “outside the United States” without “written approval from the visiting country’s consulate, and fines, costs, and restitution must be paid in full.” Id. at ¶ 4. Appellant signed and initialed the Agreement. Under these circumstances, which include Appellant’s affirmative acts, we cannot conclude that Appellant was deprived of “fundamental fairness required by the Fourteenth Amendment.” Melnyk, 548 A.2d at 272.

Slip op. at 11-12. Superior Court went on to hold that the trial court’s imposition of restitution as part of McCabe’s criminal sentence was not a violation of his constitutional rights, concluding that:

In criminal proceedings, an order of restitution is not simply an award of damages, but is, rather, a sentence. Commonwealth v. Holmes, 155 A.3d 69 (Pa. Super. 2017). Section 1106 of the Crimes Code specifies that restitution is mandatory and the defendant’s financial resources, i.e. , his ability to pay, is irrelevant unless and until he defaults on the restitution order. Commonwealth v. Colon, 708 A.2d 1279, 1284 (Pa. Super. 1998) ; see also 18 Pa.C.S.A. § 1106. Accordingly, it bears repeating that this Court has no authority to disregard the plain language of the Sentencing Code. 1 Pa.C.S.A. § 1921 ; see also [Commonwealth v.] Hall, [80 A.3d 1204, 1211 (Pa. 2013)] (“The plain language of the statute is generally the best indicator of legislative intent ….”). Appellant’s claim – that his ability to pay was not considered – lacks merit because the court was not obligated to consider ability to pay when it entered the order. Id.

Slip op. at 14.

The Pennsylvania Supreme Court granted allocatur to consider the following issues:

(1) Is the pretrial disposition program Veterans Treatment Court controlled by Chapter 3 of the Rules of Criminal Procedure?

(2) Was   [Petitioner]  impermissibly denied full benefits of the Veterans Treatment Court program, namely a dismissal of charges, based upon his inability to pay full restitution, in violation of his Fourteenth Amendment right to Due Process and Equal Protection under the United States Constitution?

For more information, contact Kevin McKeon or Dennis Whitaker.