Commonwealth v. Lebo

JOHNSON, Judge,

concurring.

I concur in the sound result reached by the Majority. I agree that Lebo has waived the issue of whether the special conditions imposed by the Dauphin County probation office subsequent to his admission into the Accelerated Rehabilitative Disposition (ARD) program unconstitutionally infringe on his right to privacy and his right against self-incrimination. I also agree that Lebo’s trial counsel was not ineffective for failing to (1) preserve the question of whether his sentence was excessive; (2) challenge the trial court’s failure to inquire into his ability to pay before imposing a fine; (3) challenge the trial court’s reliance on impermissible factors in determining the amount of the fine to be imposed; and (4) challenge the fine as an unconstitutional forfeiture and as unconstitutionally excessive.

I write separately, however, because I disagree with the proposition that in order to resolve the issue of whether the court erroneously terminated Lebo’s participation in the ARD program, this Court must first address the issue of whether a court may impose an ARD condition that authorizes a county parole office to provide the specific terms of the program. Instead, I believe the issue is simply whether the court abused its discretion in finding that the special conditions were properly imposed and in revoking Lebo’s probation and removing him from the ARD program because he refused to comply.

*1165 The fact that Lebo agreed to be supervised by the Union County probation office and to comply with all the rules and regulations as imposed by that office is clear from the Order dated May 17,1996, and the Union County Adult Probation ARD Conditions form signed by Lebo on the same date. Lebo, however, is not contesting his agreement to comply with the conditions imposed by Union County. Rather, Lebo contests the subsequent imposition of conditions by the Dauphin County probation office. While acknowledging that not all terms can possibly be spelled out before acceptance, Lebo contends that he never agreed to comply with any conditions to be imposed by the Dauphin County probation office. According to Lebo, special conditions, such as unannounced searches of his home for pornographic materials and participation in a program for sexual offenders, must be jointly agreed to by the prosecutor and the defendant before acceptance into the program.

Although the Majority recognizes that a court has the authority to modify the conditions of an ARD order, the Majority supports its conclusion that Lebo agreed to the imposition of the special conditions by relying on the court’s authority to interpret its own orders. Consequently, in the instant case, the order would be devoid of rehabilitative conditions if the court’s interpretation were not followed. I do not believe, however, that this is an instance of a court interpreting its own order. In my view, this is an instance of a court modifying, rather than interpreting, the conditions of an ARD order. Thus, I believe the issue can best be resolved by relying on the court’s broad authority to modify an ARD order and then determining whether Lebo has demonstrated how the court abused its discretion in exercising this authority.

Pennsylvania Rule of Criminal Procedure 182(a) provides that an ARD order may include conditions “as may be imposed with respect to probation after conviction of a crime.” Under the statute governing conditions that may be imposed with respect to probation after conviction, the court may order the defendant to “participate in drug or alcohol treatment programs” or to “satisfy any other conditions reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience.” 42 Pa. C.S. § 9754(c)(12)-(13). In addition, the county probation officer has the authority to make warrantless searches of the property of a person charged with a sexual offense under 18 Pa.C.S. §§ 3121-27 if the property search is a condition of the offender’s participation in an ARD program. 61 P.S. § 331.27b(b), (g). Thus, in the instant case, because Lebo was charged with the corruption of minors and indecent assault, the court had the authority to require Lebo to participate in a program for sexual offenders and to submit to random searches of his property for pornography.

Moreover, under 42 Pa.C.S. § 9771(a), the court has the authority to modify the conditions upon which an order of probation was imposed following a conviction. Although no counterpart is contained in the rules governing ARD, the rules do not prohibit the modification of an ARD order. As the court noted, additional conditions must often be imposed subsequent to the ARD order because the probation office does not always receive the information necessary to fashion the specific conditions until after enrollment. For example, in Lebo’s case, the Union County probation office learned subsequent to his enrollment that he was a resident of Dauphin County and had a prior ARD in Dauphin County.

In fashioning conditions for admission to an ARD program, discretion is abused when “some criteria for admission [is] 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 circumstances....” Commonwealth v. Lutz, 508 Pa. 297, 310 , 495 A.2d 928, 935 (1985). A logical corollary is that the program must be administered in a manner that is related to the protection of society and/or the likelihood of a person’s success in rehabilitation. Thus, it is my belief that the court has the authority to modify ARD conditions to require a person charged with indecent assault and the corruption of minors to sub *1166 mit to warrantless searches of his property for pornography and to participate in a program for sexual offenders because such special conditions could properly be imposed as a condition of probation after a conviction and the conditions are clearly related to the goals of the ARD.

The next step, then, is to determine whether Lebo has demonstrated how the court abused its discretion in removing him from the ARD program because he refused to comply with the subsequently imposed conditions. Before an ARD program can be terminated for a violation of the conditions, certain procedural requirements must be met. First, the Commonwealth must file a motion alleging a violation of conditions. Pa. R.Crim.P. 184(b). Next, the judge must provide the defendant with an opportunity to be heard. Pa.R.Crim.P. 184(c). “If the judge finds that the defendant has committed a violation of a condition of the program, the judge may order, when appropriate, that the program be terminated, and that the attorney for the Commonwealth shall proceed on the charges as provided by law.” Id.

In the instant ease, the Union County probation office filed a petition for termination alleging that Lebo had refused to comply with the special conditions imposed by the Dauphin County probation office. A revocation hearing was held in November 1996. A review of the record of the hearing shows that the only witness to testify was the probation officer from Dauphin County who imposed the special conditions. N.T., November 25, 1996, at 8-14. The witness testified that she had dealt with Lebo as his probation officer for two years in an ARD program in Dauphin County beginning in 1991 or 1992. Id. at 9, 12. She also testified that although Lebo’s criminal record in Dauphin County had not been expunged, she imposed the special conditions on Lebo based solely on her personal recollection of Lebo during the time she was his probation officer. Id. at 9, 13-14.

Lebo presented no evidence at the revocation hearing. At the conclusion of the hearing, the court asked Lebo if it was his intention to decline supervision if it involved enrollment in a program for sexual offenders. Id. at 14. Lebo told the court that he found such a condition to be unacceptable and illegally imposed and, thus, was “willing to be removed from the program and go to trial.” Id. at 15-16. The court then found the conditions to have been properly imposed and scheduled «the case for trial. Id. at 16. Thus, the court complied with the requirements of Pa.R.Crim.P. 184(c).

Lebo argues in his brief to this Court that no real evidence was presented at the hearing to support revocation. Lebo contends that the expunged record of a person who successfully completes an ARD program cannot be used in determining ARD eligibility or whether a current ARD program should be revoked. Assuming arguendo that Lebo’s contention is true, it does not apply in this case. In the instant case, the court did not revoke Lebo’s probation based on an expunged record of his past ARD. Instead, knowledge of his past ARD, which came to light after enrollment in the program, formed the basis for the imposition of special conditions. As the court noted, specific conditions are often imposed after admission into the ARD program because the information necessary to fashion the specific conditions is often not received until after enrollment, as “defendants are historically reluctant to admit guilt or personal issues before they are accepted into the program.” Trial Court Opinion, dated June 14,1997, at 3.

I would hold, then, that a court may refer to a defendant’s past ARD to modify an ARD order and to impose additional conditions where doing so, as in Lebo’s case, would help to protect society and/or aid in the rehabilitation of the defendant. Therefore, although I join the Majority in all other respects, I can concur only in the result of this issue.