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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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).




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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.



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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.



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       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)


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      “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).



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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).




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       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[.]”


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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.




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     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

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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.

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     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


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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




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