Com. v. Johnson, L. ( 2016 )

J-S31030-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LORI JEAN JOHNSON
Appellant No. 1546 MDA 2015
Appeal from the Judgment of Sentence August 27, 2015
In the Court of Common Pleas of Adams County
Criminal Division at No(s): CP-01-CR-0000178-2015
BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY OTT, J.: FILED SEPTEMBER 08, 2016
Lori Jean Johnson appeals from the judgment of sentence imposed
August 27, 2015, in the Adams County Court of Common Pleas. The trial
court sentenced Johnson to a term of 72 hours to six months’ partial
confinement with work release, after she was convicted of two counts of
driving under the influence of alcohol (“DUI”), and a summary violation of
driving on roadways laned for traffic.1 On appeal, Johnson raises two claims
concerning the denial of her admission into the Commonwealth’s accelerated
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
75 Pa.C.S. §§ 3802(a)(1) (incapable of safe driving) and (c) (highest rate),
and 3309(1), respectively.
J-S31030-16
rehabilitative disposition (“ARD”) program. For the reasons below, we
affirm.
The facts and procedural history underlying Johnson’s appeal are as
follows. On December 26, 2014, an officer found Johnson sitting in her
vehicle, which was stopped on railroad tracks. The officer then arrested her
for suspicion of DUI. A subsequent blood test revealed a blood alcohol
content of .185%. Johnson was later charged with the above-mentioned
two counts of DUI, as well as the summary offenses of driving on roadways
laned for traffic and trespass by motor vehicle.2
On June 3, 2015, Johnson filed a motion requesting the trial court
compel her admission into the ARD program and remit the costs of the
program. She averred the Commonwealth offered her ARD with the
condition she pay for the cost of the program ($1,795.00) over the nine-
month period she would be enrolled in the program. Motion to Compel
Admission into the ARD Program and Remit Costs of the Program, 6/3/2015,
at ¶ 2. Johnson claimed, however, that she was indigent, and requested the
trial court direct the costs be remitted “or at least reduced[.]” Id. at ¶ 7.
The trial court conducted a hearing on June 22, 2015, to determine
Johnson’s financial ability to pay for the costs associated with the ARD
program. Following the hearing, the court entered an order denying
____________________________________________
2
See 75 Pa.C.S. § 3717(a).
-2-
J-S31030-16
Johnson’s motion. The court specifically concluded Johnson “has the
financial ability to make payments toward the ARD program fees.” Order,
6/22/2015.
Thereafter, on August 27, 2015, the case proceeded to a bench trial on
stipulated facts. As noted above, the trial court found Johnson guilty of two
counts of DUI, and one of the summary offenses.3 That same day, the court
sentenced Johnson to 72 hours to six months’ partial confinement and a
$1,000.00 fine for DUI (highest rate). The trial court directed that Johnson
be paroled at the completion of her minimum sentence, and immediately
eligible for work release.4
Johnson thereafter filed a timely post-sentence motion, claiming the
Commonwealth’s failure to institute a system to allow indigent defendants to
participate in the ARD program was a violation of the equal protection clause
of the United States and Pennsylvania Constitutions. See Post-Sentence
Motion, 9/4/2015, at ¶ 6. Further, she requested the court vacate her
sentence, admit her into the ARD program, and either remit or reduce the
program costs “to a level equal to what payments per month would normally
be set at through the Clerk of Courts (likely $40/month for a total of $360).”
____________________________________________
3
The trial court found Johnson not guilty of trespass by motor vehicle.
4
The second count of DUI merged with the first for sentencing purposes,
and the court directed Johnson pay a $25 fine for the summary violation.
-3-
J-S31030-16
Id. at ¶ 9. The trial court denied the motion, and this timely appeal
followed.5
Johnson raises the following two claims on appeal:
I. Whether the Commonwealth violated the equal protection
clause of the 14th amendment of the United States
Constitution and Article I, Section 1 of the Pennsylvania
Constitution by not implementing a system to allow
indigent defendants, like [Johnson], to participate in the
ARD program[?]
II. Whether the lower court abused its discretion by not
reducing the fines associated with the ARD program for
[Johnson] who reasonably believed she would be unable to
pay them[?]
Johnson’s Brief at 6.
In her first issue, Johnson raises a constitutional challenge to the
Commonwealth’s application of the ARD statute. Specifically, she argues the
Commonwealth violated her equal protection and due process rights, under
both the United States and Pennsylvania Constitutions,6 because it has not
implemented “a system to either remit or at least lower the costs of the ARD
program for … indigent defendants.” Johnson’s Brief at 11.
____________________________________________
5
On September 14, 2015, the trial court ordered Johnson to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Johnson complied with the court’s directive, and filed a concise statement on
October 1, 2015. We note that the trial court also granted Johnson’s
application for bail pending appeal.
6
See U.S. CONST. amend. XIV and PA. CONST. art. I, § 1.
-4-
J-S31030-16
The determination of whether an equal protection or due process
violation occurred is a question of law, such that our standard of review is de
novo and our scope of review is plenary. See Commonwealth v. Smith,
131 A.3d 467, 472 (Pa. 2015); Commonwealth v. Atwell, 785 A.2d 123,
125 (Pa. Super. 2001).
Preliminarily, we agree with the Commonwealth’s assertion that
Johnson’s due process claim is waived because she failed to raise it before
the trial court in either her post-sentence motion or court-ordered concise
statement. See Commonwealth’s Brief at 18. See also Post-Sentence
Motion, 9/4/2015; Statement of Errors Complained of on Appeal, 10/1/2015.
It is axiomatic that issues not raised before the trial court or in a court-
ordered concise statement are waived on appeal. Pa.R.A.P. 302(a);
Commonwealth v. Diamond, 83 A.3d 119, 136 (Pa. 2013), cert denied,
135 S.Ct. 145 (U.S. 2014). Accordingly, we will restrict our focus to
Johnson’s equal protection challenge.7
____________________________________________
7
We note that even if we were to consider Johnson’s due process argument,
we would conclude she is entitled to no relief. A panel of this Court
considered a similar due process challenge in Commonwealth v. Melnyk,
548 A.2d 266 (Pa. Super. 1988), appeal denied, 562 A.2d 319 (Pa. 1989).
In that case, the Commonwealth refused to recommend the defendant for
ARD because she could not demonstrate “a present ability to pay
restitution[.]” Id. at 267. Although the defendant raised both a due
process and equal protection challenge, the panel focused on the due
process claim, and opined:
[I]n ARD determinations, the district attorney and the court
must inquire into the reasons for the petitioner’s inability to pay
(Footnote Continued Next Page)
-5-
J-S31030-16
“The essence of the constitutional principle of equal protection under
the law is that like persons in like circumstances will be treated similarly.”8
Commonwealth v. Albert, 758 A.2d 1149, 1151 (2000). In Bearden v.
Georgia, 461 U.S. 660, (1983), the United States Supreme Court
considered an equal protection challenge focused on the defendant’s
indigency. In that case, the trial court revoked the defendant’s probation,
_______________________
(Footnote Continued)
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 her interest in repaying
her debt to society without receiving a criminal record simply
because, through no fault of her own, she could not pay
restitution. Such a deprivation would be contrary to the
fundamental fairness required by the Fourteenth Amendment.
Id. at 272. The Melnyk Court provided the defendant with relief because
the trial court had simply determined the defendant was unable to pay
restitution and denied him admission in the ARD program, without
considering any alternatives.
Conversely, in the present case, the Commonwealth recommended
Johnson for the ARD program, and the trial court conducted a hearing on
Johnson’s purported indigency. However, the court determined Johnson had
the financial ability to pay the ARD program costs. Accordingly, both the
Commonwealth and the court ensured that Johnson’s purported indigency
did not deprive her of “fundamental fairness required by the Fourteenth
Amendment.” Id.
8
We note “the equal protection provisions of the Pennsylvania Constitution
are analyzed ... under the same standards used by the United States
Supreme Court when reviewing equal protection claims under the Fourteenth
Amendment to the United States Constitution.” Albert, supra, 758 A.2d at
1151 (quotation omitted).
-6-
J-S31030-16
and sentenced him to a term of imprisonment, based solely on the
defendant’s failure to pay a fine. The Court opined:
There is no doubt that the State has treated the petitioner
differently from a person who did not fail to pay the imposed fine
and therefore did not violate probation. To determine whether
this differential treatment violates the Equal Protection Clause,
one must determine whether, and under what circumstances, a
defendant’s indigent status may be considered in the decision
whether to revoke probation. This is substantially similar to
asking directly the due process question of whether and when it
is fundamentally unfair or arbitrary for the State to revoke
probation when an indigent is unable to pay the fine. Whether
analyzed in terms of equal protection or due process, the issue
cannot be resolved by resort to easy slogans or pigeonhole
analysis, but rather requires a careful inquiry into such factors as
“the nature of the individual interest affected, the extent to
which it is affected, the rationality of the connection between
legislative means and purpose, [and] the existence of alternative
means for effectuating the purpose ....”
***
[T]he State cannot “impos[e] a fine as a sentence and then
automatically conver[t] it into a jail term solely because the
defendant is indigent and cannot forthwith pay the fine in full.”
In other words, if the State determines a fine or restitution to be
the appropriate and adequate penalty for the crime, it may not
thereafter imprison a person solely because he lacked the
resources to pay it. [Prior precedent] carefully distinguished this
substantive limitation on the imprisonment of indigents from the
situation where a defendant was at fault in failing to pay the
fine. As the Court made clear …, “nothing in our decision today
precludes imprisonment for willful refusal to pay a fine or court
costs.” Likewise [], the Court “emphasize[d] that our holding
today does not suggest any constitutional infirmity in
imprisonment of a defendant with the means to pay a fine who
refuses or neglects to do so.”
Id. at 667-668 (citations and footnotes omitted).
-7-
J-S31030-16
Here, the focus is on the state’s ARD program, which involves “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 content of which is to be determined by the court
and applicable statutes.” Commonwealth v. Lutz, 495 A.2d 928, 931 (Pa.
1985). Pennsylvania Rule of Criminal Procedure 316 provides, inter alia,
“the conditions of the program may include the imposition of costs, the
imposition of a reasonable charge relating to the expense of administering
the program, and such other conditions as may be agreed to by the parties.”
Pa.R.Crim.P. 316(A). However, the Comment to the Rule acknowledges
“[t]he practice has been to permit qualified individuals who are indigent to
participate in the ARD program without payment of costs or charges.” Id.,Comment.
Johnson asserts that both Commonwealth and the trial court herein
have ignored the mandate of Rule 316 by failing to remit or reduce the ARD
program costs for indigent defendants, such as herself. She states:
[D]efendants across the state like [Johnson], are living in
desperate financial situations, but are being required to pay
exorbitant amounts of money to participate in a program that is
designed for the benefit of all, but is just benefitting those who
have comfortable financial situations. And if they fail to do this
then they are commonly serving jail time and receiving criminal
records which only exasperate their already dire financial
situations. This appears to be a violation of the Equal Protection
Clause in that the indigent are not being treated similarly to the
affluent[.]”
-8-
J-S31030-16
Johnson’s Brief at 13. She further argues: “it is a violation of the fairness
implicit in the 14th Amendment to force defendants, like [Johnson], to have
to file motions to compel admission into the ARD Program.” Id. at 16.
We find no equal protection violation. Here, the Commonwealth
treated Johnson, a purported indigent, the same as any other defendant,
and recommended her admission into the ARD program. However, when
Johnson averred that she could not pay the costs of the program, which is
required of all defendants, the trial court conducted a hearing to determine
Johnson’s ability to pay. The court was not obligated to blindly accept
Johnson’s assertion that she could not afford to pay the costs of the ARD
program. After the hearing, the court determined Johnson had the financial
ability to pay, and denied her motion to reduce or remit the program costs. 9
Accordingly, Johnson was not denied equal protection under the law, and her
first argument fails.
____________________________________________
9
We note Johnson asserts the District Attorney’s Office should have had a
specific system in place “to offer reduced fines and costs for indigent
defendant[s] seeking admission into ARD,” so that such defendants are not
“force[d]” to file a motion to compel admission. Johnson’s Brief at 16.
However, she fails to explain how the procedure which occurred in the
present case was unconstitutional. The Commonwealth recommended
Johnson for ARD without regard to her financial resources. When she
believed she could not pay the costs associated with the program in the
designated time period, she filed a petition with the trial court, which then
conducted a hearing. Under this scenario, Johnson’s rights were protected.
-9-
J-S31030-16
Second, Johnson contends the trial court abused its discretion in failing
to reduce or remit the costs associated with the ARD program.
It is well-settled that “[a]dmission to an ARD program is not a matter
of right, but a privilege.” Lutz, supra, 495 A.2d at 935. The decision to
recommend a defendant for ARD lies solely in the prosecutor’s discretion.
Commonwealth v. Cline, 800 A.2d 978, 981 (Pa. Super. 2002), appeal
denied, 822 A.2d 703 (Pa. 2003). “Once the Commonwealth submits an
ARD recommendation, the trial court is vested with the discretion to decide
whether to accept the recommendation.” Id.Here, the trial court did not deny Johnson admission into the ARD
program. Rather, the court refused to reduce or remit the costs associated
with the program. As noted above, Rule 316 specifically permits the court to
impose the payment of program costs as a condition of ARD. See
Pa.R.Crim.P. 316(A). The Comment to the Rule clarifies, however, that
otherwise qualified indigent defendants should be permitted to participate in
ARD without the payment of costs or charges. See id., Comment.
Accordingly, in the present case, when Johnson averred she was indigent
and unable to pay the costs associated with her admission into the ARD
program, the court conducted a hearing to determine whether she was
financially able to pay the ARD costs. Similar to an in forma pauperis
determination, we find “[t]he trial court has considerable discretion in
determining whether a person is indigent … [and] in making that
determination, it must focus on whether the person can afford to pay and
- 10 -
J-S31030-16
cannot reject allegations in an application without conducting a hearing.”
Commonwealth v. Cannon, 954 A.2d 1222, 1226 (Pa. Super. 2008)
(holding trial court did not err in denying motion to appoint expert witness
when defendant failed to establish indigency) (quotation omitted), appeal
denied, 964 A.2d 893 (Pa. 2009).
In the present case, Johnson argues the court abused its discretion by
not, at the very least, reducing the administrative cost of her participation in
the ARD program. See Johnson’s Brief at 17. She notes her testimony
during the hearing revealed her only income was $800 per month from odd
jobs and $200 per month in food stamps, although she also indicated she
receives financial help from her parents and boyfriend. See id. Moreover,
she testified her monthly expenses were $700 for rent, $225 for cell phone
service, $80 for internet and television, $30 for student loans, and $35 for a
court fine. See id. Further, she explained she supports two daughters,
ages 20 and four, without child support. See id. While Johnson also
acknowledged that she spends an additional $110 per month on cigarettes
and alcohol, she argues her ability to pay the ARD costs should not be
“decided on whether she has any personal expenses” or whether she has
family or friends who can help her pay expenses. Id. at 18. Rather, she
claims, her testimony “included justifiable expenses, under anyone’s
judgment, that eclipsed the amount of income she has.” Id. Therefore, she
asserts, the trial court abused its discretion in refusing to reduce the
administrative cost of ARD.
- 11 -
J-S31030-16
The trial court, however, disagreed, opining:
Here, [Johnson] claims that the typical condition that she
pay the standard fee of $17955 is unreasonable. At the June 22,
2015, hearing it was determined that [Johnson] was a college
graduate [who] was currently starting her own business.
[Johnson] has split custody of [two] children, with a 20 year old
and four year old residing with her. [Johnson] was doing odd
jobs to have a monthly income of $800. [Johnson] had monthly
bills of $30 for student loans; $225 for her and her 20-year-old
daughter’s cell phone; and $80 for internet at her home. It was
also determined that [Johnson] spent $25 per week on
cigarettes and $10 a month on alcohol. [Johnson] makes no car
payments as she owns her car outright and receives food
stamps. With the exception of the student loans, all of those
expenses are discretionary. No testimony was offered to
suggest [Johnson] has any disability that would preclude her
from seeking or obtaining more gainful employment.
__________
5
The Adams County District Attorney’s office offered
[Johnson] ARD for a 9 month period. Her payments break
down to roughly $199 per month.
__________
Further, there is no entitlement to be allowed to participate
in a discretionary program like ARD. While it might be financially
challenging for her, [Johnson] nonetheless has available funds to
pay the standard costs associated with the ARD program, but
chooses to prioritize extra amenities over participation in this
diversionary program. [Johnson’s] alleged inability to pay the
standard fees and costs of the ARD program is more a desire not
to pay than an inability to pay.
Trial Court Opinion, 10/6/2015, at 3.
We detect no abuse of discretion on the part of the trial court.
Although Johnson’s monthly expenses appear to greatly exceed her income,
we agree with the conclusion of the trial court that a large percentage of
those expenses are discretionary. We remind Johnson that “[a]n abuse of
- 12 -
J-S31030-16
discretion is not merely an error in judgment but requires a finding of bias,
partiality, prejudice, ill will, manifest unreasonableness, or misapplication of
law.” Commonwealth v. Lepre, 18 A.3d 1225, 1226-1227 (Pa. Super.
2011). Here, she failed to demonstrate the court’s ruling was an abuse of
discretion.
Judgment of sentence affirmed.
Judge Shogan joins this memorandum.
Judge Strassburger files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/8/2016
- 13 -