NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P Appellee No. 560 MDA 2012

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA, Appellant IN THE SUPERIOR COURT OF PENNSYLVANIA v. KAREN S. RUSH, Appellee No. 560 MDA 2012 Appeal from the Order Entered February 14, 2012 In the Court of Common Pleas of Huntingdon County Criminal Division at No(s): CP-31-CR BEFORE: BOWES, GANTMAN, and OLSON, JJ. MEMORANDUM BY BOWES, J.: Filed: February 28, 2013 The Commonwealth appeals from the February 14, 2012 order granting Appellee Karen S. Rush entry into the Accelerated Rehabilitative Disposition program ( ARD ). We reverse the order and remand this matter. The Commonwealth instituted this criminal action against Appellee, charging her with thirteen counts of willful failure to remit sales tax, two counts of willful failure to file state sales tax returns, three counts of willful failure to pay the Commonwealth state income tax withheld from employees pay, and one count of willful failure to file an employer withholding tax return. The offenses constitute misdemeanors and relate to Appellee s operation of a Domino s Pizza store with her husband, who was charged with the same crimes, in Huntingdon County. Appellee did not file two sales tax returns and did not remit to the Commonwealth sales taxes collected from

2 June 2008 through June In addition, Appellee did not forward employee state income taxes withheld for three quarters and did not file the appropriate return with respect to those withheld taxes. The estimated amount of unpaid state sales tax was $33,978.02, and the unremitted income tax was $1, After a preliminary hearing, the charges were bound over for trial. On January 4, 2012, Appellee filed a motion with the trial court for admission into ARD. She alleged that she had petitioned the Pennsylvania Office of the Attorney General, the prosecuting body herein, for admission into the program, but her request was denied. She then set forth in the motion various factors purportedly rendering her an appropriate candidate for ARD, including the fact that she had no prior criminal history, she was a single mother of four, her children included a developmentally disabled adult, she recently graduated from college and began to work with developmentally disabled adults, and she regularly performed volunteer work. The Commonwealth responded to Appellee s petition seeking entry into ARD, contesting her eligibility to participate. It explained, The Office of Attorney General does not offer ARD in criminal tax cases as a matter of policy. Commonwealth s Answer to Defendant s Motion for Admission to - 2 -

3 ARD, 3/15/12, at 6. 1 As an additional basis for denying Appellee admission into the program, the Commonwealth stated Appellee was appropriately denied ARD in this case due to... [Appellee s] failure to pay complete restitution. Id. After hearing oral argument, the trial court granted Appellee s motion. This appeal was thereafter filed by the Commonwealth, wherein the following issue was raised: Did the trial court err by compelling the admission of Appellee Rush into ARD after the Commonwealth provided two reasons opposing her admission? Commonwealth s brief at 4. The following standards apply to our review of this issue: [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. Commonwealth v. Lutz, 495 A.2d 928, 935 (Pa. 1985); see also Commonwealth v. LeBenne, 21 A.3d 1287, 1291 (Pa.Super. 2011). We have stressed in many instances, A district attorney may base a decision to grant or deny admission to ARD on any consideration related to 1 While the Commonwealth s response was not filed of record until March, 2012, the trial court had the benefit of that pleading when it issued its February 14, 2012 directive. Trial Court Opinion, 2/14/12, at

4 the protection of society and the rehabilitation of the defendant. Commonwealth v. Sohnleitner, 884 A.2d 307, 313 (Pa.Super. 2005) (emphasis in original) (quoting Commonwealth v. Jagodzinski, 739 A.2d 173, 176 (Pa.Super. 1999)). Once the Commonwealth tenders a basis for its decision, the trial court's role is limited to [determining] whether the Commonwealth abused its discretion. LeBenne, supra at 1291 (citation omitted). In order to reverse an ARD refusal, the trial court must therefore find that the evidence was insufficient to support a finding that the district attorney's decision was related to the protection of society or the likelihood of success in rehabilitating the defendant. Sohnleitner, supra at The Commonwealth is not required to establish that its discretion was not abused; instead, the defendant has the burden of proving that the Commonwealth s decision was based on a prohibited reason. LeBenne, supra. In sum, an ARD decision by the Commonwealth cannot be overridden unless the defendant establishes that the Commonwealth abused its discretion. Additionally, the Commonwealth s rationale for the denial must be proven to be wholly unrelated to either the protection of society or the defendant s rehabilitation. In the present case, the Commonwealth offered a reason for declining Appellee s admission to ARD that was not connected in any manner to race, religion, or sex but, instead, was related to society s protection. Specifically, it declined Appellee s request to participate in ARD based on the nature of - 4 -

5 the criminal offenses. On several occasions, we have upheld the Commonwealth s refusal to admit persons into ARD based on the serious nature of the underlying offense. In those instances, we have concluded that the Commonwealth had proffered a reason related to the protection of the public. Commonwealth v. Agnew, 600 A.2d 1265 (Pa.Super. 1991) (upholding policy refusing ARD to any drug cases emanating from a particular city because policy was not wholly unrelated to the public s protection); Commonwealth v. Stranges, 579 A.2d 930 (Pa.Super. 1990) (en banc) (district attorney offered non-prohibited reason when it always denied ARD to any person who was involved in an accident while driving under the influence); Commonwealth v. Knowles, 540 A.2d 938 (Pa.Super. 1988) (approving of district attorney's policy rendering ineligible for ARD to any drunk driving offender with a blood alcohol content over.25%). In the present matter, Appellee stands accused of nineteen misdemeanors involving the failure to remit to the Commonwealth taxes that she collected from customers and employees and file mandated tax returns. The reason offered by the Commonwealth for its refusal to grant her ARD admission was based on the nature of the crimes and not upon any prohibited factor. It was not wholly unrelated to society s protection, and the trial court improperly applied the burden of proof, its standard of review, - 5 -

6 and the applicable law in overriding the Commonwealth s considerable discretion in the matter. As an alternative ground for denial, the Commonwealth stated that it did not allow Appellee ARD admission because she had failed to remit the retained tax money to the Commonwealth. This policy is rationally related to Appellee s ability to rehabilitate as well as society s interest and cannot be characterized as unsound under Lutz. In Commonwealth v. Cline, 800 A.2d 978 (Pa.Super. 2002), we analyzed a similar situation. Therein, the trial court ordered, over objection, that the defendant be permitted to participate in ARD. The Commonwealth initially agreed to allow the defendant to be placed in the program after she was charged with numerous cruelty-to-animals offenses. As a condition for that privilege, the Commonwealth demanded that she be required to make restitution for expenses associated with restoring the animals to health. Before actual ARD placement occurred, the defendant took the position that she could not be required to pay restitution since the animals were given to nonprofit agencies. The Commonwealth thereafter withdrew its ARD recommendation. The defendant claimed to the trial court that she should only be ordered to pay restitution if she failed to complete the ARD, and the trial court agreed and ordered her admission into the program. On appeal, we reversed. We concluded that the requirement that the defendant pay restitution as condition for ARD participation was not wholly, - 6 -

7 patently and without doubt unrelated to the protection of society or the likelihood of a person's success in rehabilitation. We noted that ARD approval was withdrawn by the district attorney based upon the defendant s decision that she would not pay restitution, and we held specifically that the prosecution s decision rested on a permissible rationale in that it reflected an assessment of what was beneficial for society and the defendant. The reasoning of Cline applies herein. The Commonwealth has decided that, in addition to the type of charges in question rendering her ineligible for ARD, Appellee failed to make restitution for the tax money taken from citizens of the Commonwealth. For that separate reason, she should not be accorded the right to participate in ARD. Again, this alternative ground is not a prohibited one and is related to the interest of society as well as Appellee s ability to rehabilitate. While Appellee maintains that this case is analogous to Commonwealth v. Melnyk, 548 A.2d 266 (Pa.Super. 1988), we disagree. Therein, we held that it was a denial of defendant s due process and equal protection rights to deny her admission to ARD based on her status as an indigent person. Appellee herein was not denied ARD admission on the ground that she is poor; indeed, the record establishes that she has a college education and is gainfully employed. The Commonwealth s posture is that, even if it allowed ARD for the offenses in question, which it does not, - 7 -

8 Appellee failed to remit the stolen tax money, rendering her ineligible for ARD. This position must be accepted under the reasoning of Cline. Accordingly, we conclude that both of the justifications offered by the Commonwealth for refusing Appellee s admission into ARD were valid. They related either to the protection of society and/or Appellee s rehabilitation and were not a prohibited basis for such refusal. The Commonwealth s decision was not an abuse of discretion, and the trial court committed an error in concluding the contrary. Order reversed. Case remanded. Jurisdiction relinquished