Commonwealth v. Kraft

STEVENS, J.:

¶ 1 This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Lehigh County against Appellant for Harassment by Stalking.¹ We are presented with the issue of whether a criminal defendant may challenge the decision to terminate his participation in the Accelerated Rehabilitative Disposition program (“ARD”) if he pleads nolo conten-dere to the reimposed charges. We affirm.

¶ 2 On November 14, 1996, Appellant was charged with stalking his former wife. He was accepted into the ARD program on May 27,1997, and was placed under the supervision of the York County Probation Department for twelve (12) months, during which time he was to remain in good behavior, and have no verbal, physical, or written contact with his former wife. Nearly eight months into Appellant’s participation in the program, however, the Commonwealth petitioned for Appellant’s removal based on allegations that Appellant had violated the “good behavior” requirement.

¶3 At the subsequent hearing, testimony from Appellant’s probation officer and anger management counselor established that Appellant, on several occasions, stated to them that his life would improve if his wife were dead, that he no longer cared about what happened to him, that he had to take matters into his own hands given the lack of legal recourse for his situation, and that he was familiar with demolitions from his military experiences. N.T. 2/9/98 at 6,15. The counselor further testified that such statements were related to Appellant’s present state of mind and inclinations. N.T. 2/9/98 at 27. The hearing court agreed that Appellant’s statements violated the “good behavior” condition of his ARD program, and ordered that the program be terminated and that the Commonwealth proceed on the original charge.

¶ 4 At the pretrial conference held on April 15,1998, Appellant submitted a counseled plea of nolo contendere to the charge of harassment by stalking, but only after his attorney informed the sentencing court that Appellant was “reserving the right to appeal the court’s decision to remove [Appellant] from the ARD program in the first instance, [as] the right to appeal doesn’t accrue until there’s a conviction....” N.T. 4/15/98 at 4. The sentencing court agreed that Appellant’s right to appeal stemmed from his conviction and sentence, and began the colloquy, during which Appellant stated that he understood his “appeal rights are narrowly restricted by the entry of a plea.” N.T. 4/15/98. At the conclusion of the hearing, the court sentenced Appellant to twelve (12) months’ probation plus payment of costs, ordered him to continue counseling, and prohibited him from having personal contact with his former wife. N.T. 4/15/98 at 11. This timely appeal follows.

¶ 5 Appellant argues that “the [hearing] court erred in removing Appellant from the ARD program for violating the ‘good behavior’ condition where Appellant had not violated any law.” Appellant’s Brief at 10. The Commonwealth, however, objects that Appellant waived his right to raise such a claim when he entered his plea of nolo contendere. Upon review of the parties’ briefs and relevant authority, we agree with the Commonwealth that we are precluded from reviewing Appellant’s claim on the merits.

¶ 6 To the extent that Appellant argues his ARD termination was not appealable to this Court until after judgment of sentence was imposed, he is correct. A criminal defendant may not appeal from an order that terminates his participation in an ARD program due to a violation of one of its conditions. See Pa. R.Crim.P. 184(c); Commonwealth v. Rudy, 434 Pa.Super. 277, 642 A.2d 1130 (1994). Instead, the right to such appellate review accrues only when the reinstated charges are resolved adversely to the defendant and the trial court imposes sentence. Id.

¶ 7 However, we see no reason why we should carve an exception into the axiomatic principle that a defendant who pleads nolo contendere waives all defects and defenses except those concerning the jurisdiction of the court, legality of sentence, and validity of plea.² Commonwealth v. Nelson, 446 Pa.Super. 240, 666 A.2d 714 (1995). The Pennsylvania Rules of Criminal Procedure admit of no special treatment to be accorded defendants who ultimately are declared unfit for ARD, and, in fact, instruct that the cases of such defendants are to proceed as if ARD proceedings had not taken place. See, e.g., Rules 162(c) and 188. To this effect, the precise language of Rule 184 specifies that once a defendant has been found to have violated a condition of his program, “the attorney for the Commonwealth shall proceed on the charges as provided by law.”

¶ 8 Accordingly, we apply the principles attendant to a plea of nolo contende-re to the within case, and conclude that Appellant’s challenge directed at the propriety of his ARD termination does not concern the jurisdiction of the court, the legality of his sentence, or the validity of his plea. Indeed, Appellant offers no reason why we should hold otherwise. Therefore, we hold that Appellant waived his ability to raise this issue when he entered a plea of nolo contendere.

¶ 9 Judgment of sentence affirmed.

¶ 10 BROSKY, J., filed a Dissenting Opinion.

1 . 18 Pa.C.S.A. §§ 2709(b)(1), (2).

2 . The Dissent would find the within challenge properly preserved as an exception to the above waiver rule since the challenge stems from an interlocutory pre-trial judicial decision which could not be appealed until the court imposed sentence. In support of its opinion, the Dissent relies on Commonwealth v. Pyle, 462 Pa. 613, 342 A.2d 101 (1975), wherein the Supreme Court held that a defendant had not waived his right to challenge his transfer from the juvenile system despite having thereafter pled guilty to the criminal charges facing him. The Dissent’s reliance on Pyle is misplaced, however, as the nature of the infirmity alleged in Pyle was jurisdictional, that is, defendant alleged that jurisdiction over his matter was properly in the Juvenile Court rather than in the Criminal Court. Indeed, the Court in Pyle found an exception to waiver applicable in large part because of the jurisdictional question presented therein, noting that "one of the prime purposes of the Juvenile Act is to spare from adult punishment certain youths....” Id., 462 Pa. at 617, n. 4, 342 A.2d at 103, n. 4 (emphasis added).

No such jurisdictional challenge can legitimately be made herein, as ARD necessarily applies to cases already within the jurisdiction of a Criminal Court. ARD may be granted only after criminal proceedings have been instituted, Pa.R.Crim.P. 176, and simply postpones further criminal proceedings on the pending charges while the defendant participates in the program. Pa.R.Crim.P. 181. Moreover, where the defendant violates a condition of the ARD program, the court may terminate the program, and the previously pending criminal charges may then be prosecuted by the Commonwealth. Pa.R.Crim.P. 184. In this light, it is not surprising to find that the two main goals of ARD do not include sparing persons from the jurisdiction of the criminal court but include, instead, "the rehabilitation of the offender” and "the prompt disposition of charges, eliminating the need for costly and time-consuming trials or other court proceedings.” See Committee Introduction to Pa.R.Crim.P. 160-186. In short, because it had properly been in the jurisdiction of the trial court below since the time that charges were originally filed against him, we distinguish Appellant’s case from the facts in Pyle, and, accordingly, find Pyle inap-posite.