Termination of ARD Program based on Subsequent Charges
Commonwealth v. Jenkins, 305 A.3d 50 (Pa. Super. 2023), allocatur granted May 21, 2024, appeal docket 36 MAP 2024
On May 16, 2021, Benjamin Jordan Jenkins was charged with driving under the influence of a controlled substance (DUI). Subsequently, on July 31, 2021, Jenkins was arrested for a second DUI offense; however, formal charges for this second arrest were delayed pending laboratory results. In September 2021, Jenkins filed an application for acceptance into the ARD program. The Commonwealth and trial court were unaware of Jenkin’s July arrest, and the trial court admitted Jenkins into the ARD program. Formal charges arising from Jenkins’ July arrest were filed on March 22, 2022, which led the Commonwealth to seek Jenkins’ removal from the ARD program on April 7, 2022. Following a review hearing, the trial court terminated Jenkins’ participation in the ARD program. The trial court opined that excusing a defendant’s failure to disclose prior arrests in an ARD application would “violate the spirit and intent of the ARD program,” and further that:
removal of Appellant from the ARD program was a proper exercise of its discretion as Appellant’s failure to disclose his second DUI arrest carried an “element of deception by omission which if allowed to stand would defeat the spirit and purpose of the ARD program.” T.C.O. at 5. The trial court asserted that it would have summarily denied the application for Appellant’s admission into the ARD-DUI program had it known that Appellant had been arrested a second time for DUI.
Slip op. 7. Jenkins appealed to Superior Court, arguing that the trial court erred in revoking his ARD status based on charges filed after his admission into the program given that the underlying arrest occurred prior to his ARD acceptance and that his ARD application only required disclosure of pending charges, not arrests without formal charges. In support, Jenkins relied on Commonwealth v. Simmons, 262 A.3d 512 (Pa. Super. 2021), in which Superior Court held that a trial court may not revoke probation as a result of new charges arising from conduct committed prior to the beginning of probation.
Superior Court affirmed the trial court’s decision to remove Jenkins from the ARD program. Emphasizing that ARD is a privilege, not a right, and that participants are expected to fully disclose any relevant information, including arrests, even if formal charges are not pending. “Unpersuaded” by Jenkins’ reliance on Simmons, Superior Court explained:
In Simmons, the defendant was sentenced to 6-23 months’ imprisonment followed by three years’ probation. After Simmons was released on parole but before his probationary tail commenced, Simmons was charged with drug and firearms offenses. The trial court revoked both parole and probation and resentenced Simmons to 2½ – 5 years’ imprisonment.
On appeal, this Court held that while the trial court properly revoked Simmons’ parole, the trial court erred in anticipatorily revoking Simmons’ probation before his probationary period had begun. This Court cited to the language in 42 Pa.C.S.A. § 9771, which provides that a trial court may only “revoke an order of probation upon proof of the violation of specified conditions of the probation.” This Court held that a defendant’s probationary sentence, if imposed consecutively after a term of imprisonment, does not begin until the prior sentence has been served. Simmons, 262 A.3d at 525. As such, this Court found that Simmons could not have violated his probation as he was still serving parole at the time in question and had not yet begun serving the probationary tail of his sentence. Id.
Appellant’s argument is unconvincing as ARD is not sufficiently analogous to probation. As emphasized above, ARD is a pretrial diversionary program that gives a first-time offender a chance to avoid prosecution if he successfully completes certain rehabilitative conditions. ARD is a privilege, not a right, for those individuals who are recommended for and accepted into the program.
In comparison with probation, ARD applicants are not bound by an admission or finding of guilt, have not been convicted of a crime, nor are they subject to any sentence. When ARD participation is terminated or a defendant simply withdraws from participation, a defendant does not face punishment or any other consequence other than removal from the voluntary program after which the prosecution proceeds “on the charges as provided by law.” Pa.R.Crim.P. 318(c). ARD has simply suspended the criminal proceedings, which may be reactivated upon the defendant’s withdrawal or removal from the program.
Slip op. at 10-12. The court concluded:
In this case, the fact that Appellant had been arrested for DUI on two occasions in a three-month period and subsequently failed to disclose the second arrest to the Commonwealth in applying for ARD supports the trial court’s decision that Appellant was unsuitable for ARD upon his application to the program. Despite having notice that he was not permitted to have pending criminal charges in applying for and while participating in ARD, Appellant deliberately withheld information concerning his second DUI arrest from the prosecution and trial court in applying for ARD. The trial court did not abuse its discretion in terminating Appellant’s participation in the program after new charges relating to Appellant’s second DUI arrest were filed while Appellant was on ARD for the instant charges.
Slip op. at 12.
The Pennsylvania Supreme Court granted allocatur to consider the following issues:
(1) Whether it is permissible to revoke ARD in order to promote the spirit of the program when a defendant truthfully responds to application questions?
(2) Whether a defendant’s participation in ARD can be revoked when the defendant did not violate a condition of ARD, or applicable condition of probation, while participating in the program?