WANT OFF THE ARD PROGRAM? YOU’RE GOING TO HAVE TO REFUSE TO COMPLY. (Simply asking to be removed may not be enough.)
The PA Superior Court has quashed the appeal of Commonwealth v. Horn, 1918 WDA 2016 (October 4, 2017) for lack of jurisdiction, thereby letting stand the decision of the trial court not to grant Horn’s request to be removed from the ARD program so he could contest his DUI charge instead.
Horn was arrested for DUI and applied for acceptance into the ARD (Accelerated Rehabilitative Disposition) Program. The ARD Program typically permits a defendant to avoid conviction and have the charges dismissed and expunged from a defendant’s criminal record after the defendant successfully completes the required terms and conditions of the program.
After being accepted into the ARD Program, Horn decided that he wanted to contest his DUI charges and no longer wished to participate in the ARD Program. He therefore filed a “Petition to Remove Himself from the ARD Program.” This Petition was denied by the trial court and Horn was not removed from the ARD Program. This appeal to the Superior Court followed.
The Superior Court noted that due to “the unique nature of an order that accepts a defendant into a ARD program, this Court has held that acceptance of ARD is an interlocutory matter and consequently is not appealable.” Accordingly, the trial court’s order denying Horn’s “Petition to Remove Himself from the ARD Program” was not a final order, as acceptance into – and termination of – the ARD program is an interlocutory matter. As such, the PA Superior Court concluded it did not have jurisdiction over Horn’s appeal and, therefore, quashed it because (1) it was not defined as appealable as of right; (2) Horn did not ask for or receive permission to appeal the interlocutory order; and (3) Horn did not provided the Superior Court with any argument as to whether – or how – the order could satisfy the collateral order doctrine.
Lastly, in an effort to provide Horn and others similarly minded* with a window of hope on how to be removed from the program, the Superior Court dropped a footnote suggesting that Horn could simply refuse to comply with the conditions of the program at which time the Commonwealth could seek his removal from the program and proceed on the charges against him.
*given the fact ARD allows a defendant to earn a dismissal and expungement of the charges, this writer suspects there are few who are, in fact, similarly-minded
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