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J. A10037/99
1999 PA Super 232
COMMONWEALTH OF PENNSYLVANIA,  :  IN THE SUPERIOR COURT OF  
:  PENNSYLVANIA
                                           Appellant  :  
:
                              v.  :    No. 1597 Pittsburgh 1998  
:  
JOHN A. JAGODZINSKI  :  

Appeal from the Order Dated August 5, 1998, in the Court of Common Pleas of Erie County Criminal Division, No. 859 of 1998
BEFORE:  JOHNSON, FORD ELLIOTT, AND ORIE MELVIN, JJ.
OPINION BY FORD ELLIOTT, J.: Filed:  September 14, 1999
.
1 In this appeal, the Commonwealth alleges trial court error in admitting John Jagodzinski ("Jagodzinski") into the Accelerated Rehabilitative Disposition ("ARD") program over the Commonwealth's objection.  Finding trial court error, we are constrained to reverse.  The relevant factual and procedural history of this rather novel case follows.

.
2 Following his arrest for driving under the influence, Jagodzinski elected to apply for ARD.  An applicant for ARD in Erie County must complete an application, which includes the following question:

8. A. Have you ever been found guilty or pleaded guilty or no contest to any criminal violation of any kind in any court, other than for summary offenses, whether in Pennsylvania or anywhere else?  If so, explain giving date, place, charge(s) and disposition.

J.
A10037/99



R.R. at 3a. He answered the question truthfully by attaching an explanation that in 1992 he was convicted of possession of cocaine, was placed on probation, had his automobile forfeited, and was required to pay significant fines. In 1996, however, his record was sealed pursuant to Ohio statute, which, according to his attorney, was the equivalent of an expungement.
(R.R. at 6a, 8a.)
. 3 Based on Jagodzinski's answer to this question, Assistant District Attorney Vincent Nudi ("ADA Nudi") advised Jagodzinski's attorney, Michael Cauley, Esq., that Jagodzinski would not be recommended for the ARD program. (R.R. at 9a.) In a subsequent letter denying reconsideration of Jagodzinski's application, ADA Nudi advised Attorney Cauley that the Ohio statute merely sealed, and did not expunge, Jagodzinski's record. (R.R. at 11a-16a.) Jagodzinski then filed a motion to compel admission to the ARD program, and the motion was granted.
. 4 It is clear from the foregoing that the District Attorney's decision to deny Jagodzinski admission to ARD was based upon his truthful answer to Question 8 on the application. The trial court found that ADA Nudi abused his discretion when he relied on Jagodzinski's answer to that question, which revealed his sealed Ohio record, because that record was a "prohibited consideration" as that term is used in Commonwealth v. Benn, 544 Pa. 144, 675 A.2d 261 (1996) and Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985). We find, however, that Question 8 was a permissible area
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of inquiry, and that the District Attorney's consideration of Jagodzinski's
response to that question was not a "prohibited consideration." Our reasons
follow.
. 5 In Lutz, supra, our supreme court held that the district attorney has
sole discretion in any criminal case, including drunk driving cases, to move
for admission of a defendant into ARD. Lutz, supra at     , 495 A.2d at
932, citing Pa.R.Crim.P. 185, Comment, 42 Pa.C.S.A. (amended). As our
supreme court continued, "Admission to an ARD program is not a matter of
right, but a privilege." Lutz, supra at , 495 A.2d at 933 (citation
omitted). Rejecting the notion that the revised Motor Vehicle Code permits
a defendant to move for admission to ARD, the Lutz court opined:
[T]he criminal defendant has no right to demand that he be placed on ARD merely because any particular offense is his first. Rather, society, for its own protection, has an interest in carrying out the penalties prescribed by the legislature for drunk driving, except in the cases where even society's representative in the case, the district attorney, acting in conjunction with the court, and subject always to the restrictions set out in [75 Pa.C.S.A.] Section 3731(d) (concerning persons who may not be admitted to ARD) determines that ARD is preferable to conviction because of the strong likelihood that a given criminal defendant will in fact be rehabilitated by an ARD program.
Id.. 6 Nevertheless, as the Lutz court observed, the district attorney's
discretion is not unfettered, and may be "usefully circumscribed by a
requirement of openness[.]" Id. at      , 495 A.2d at 934.  District attorneys
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are thus required openly to specify their reasons for not submitting a particular case to ARD, "and those reasons, while they may be subject to disagreement as to their wisdom, do not amount to an abuse of discretion."
Id.. 7 Then, reiterating its prior pronouncements, the Lutz court observed: [T]he 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 his view of what is most beneficial for
society and the offender. Id. at , 495 A.2d at 935 (emphasis in original and added) (citations omitted).
. 8 As the Lutz court's pronouncements clearly indicate, a district attorney may base a decision to grant or deny admission to ARD on any consideration related to the protection of society and the rehabilitation of the defendant. Id. Certainly, whether Jagodzinski had ever been found guilty of a criminal violation is relevant to both of those considerations. In keeping with these policy considerations, many counties, including Erie, regard ARD programs as first-time offender programs, finding that a person who has committed subsequent offenses is a continuing risk to society and is a less viable candidate for rehabilitation. (Commonwealth brief at 6, 6 n.3;
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Commonwealth v. Belville, 711 A.2d 510 (Pa.Super. 1998).) One who has been convicted of a crime, whether in this state or elsewhere, cannot reasonably describe him/herself as a first time offender unless the legislature has specifically granted that privilege, as it did under the statute
1
at issue in Benn, supra.
. 9 Nevertheless, Jagodzinski, relying on Benn, supra, argues that his sealed Ohio record constituted a prohibited consideration. In Benn, Benn's record was expunged pursuant to statute following his successful completion of probation without verdict ("PWOV") following a violation of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S.

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