J-S77045-18 (Pa. Super. Ct. Jun. 11, 2019)

J-S77045-18 No. 1792 EDA 2018




Appeal from the Order Entered June 6, 2018
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0003295-2017 BEFORE: OTT, J., DUBOW, J., and STRASSBURGER, J. MEMORANDUM BY OTT, J.:

Retired Senior Judge assigned to the Superior Court.

The Commonwealth of Pennsylvania appeals from the order entered June 6, 2018, in the Court of Common Pleas of Chester County, directing the Chester County District Attorney's Office to admit Tyler Christian Slatoff into the ARD Program, conditional upon participation in weekly drug and alcohol counseling sessions rather than his participation in the "Drug Court Program." In this timely appeal, the Commonwealth argues the trial court overstepped its authority in issuing the order. After a thorough review of the submissions by the parties, relevant law, and the certified record, we affirm based on the sound reasoning of the trial court.

The parties are well versed in the factual history of this matter; accordingly, we need not provide a detailed recitation of the facts. We relate that on April 27, 2017, Slatoff was subjected to a traffic stop that resulted in the determination he had a blood alcohol concentration (BAC) of 0.075% (slightly under the 0.08% driving limit), as well as traces of Xanax and metabolites of marijuana in his blood. Slatoff was subsequently charged with driving under the influence, failing to drive within a single lane, careless driving, accidents involving damage to unattended vehicle or property, careless driving, and underage drinking.

75 Pa.C.S. §§ 3802(a)(1), (d)(1)(i), (d)(2), (d)(3), (e); 3309(1); 3714(a); 3745(a); and 18 Pa.C.S. § 6308(a), respectively.

Slatoff had a doctor's prescription for Xanax. Slatoff suffered, and presumably still suffers, from an astounding array of symptoms and diagnoses, including: "racing thoughts, anxiety, panic attacks, depression, difficulty keeping still, headaches, memory loss, night flashbacks, alcohol abuse and marijuana use ... post-concussive disorder (having suffered 15 diagnosed concussions), post-traumatic stress disorder, Postural Orthostatic Tachycardia Syndrome (POTS) (which can predispose a person to concussions), tinnitus, optometric disturbance, and suspected Chronic Traumatic Encephalopathy (CTE)." Trial Court Opinion, 7/10/2018, at 3.

Simply for informational purposes, POTS, according to WebMD, is a racing heart upon standing up from sitting or upon sitting up from lying down. The heart races in an effort to pump blood from the lower body to the brain.

Slatoff applied for and was accepted into Chester County's ARD program. The certified record contains no document indicating Slatoff was accepted into ARD, however, the Commonwealth asserts that his acceptance contained the "added condition that he must complete Drug Court." See Commonwealth's Response to [Slatoff's] Motion to Compel ARD, 4/16/2018, ¶ 3.

Accelerated Rehabilitative Disposition.

Slatoff applied for Drug Court and was required to undergo an evaluation conducted by the Mirmont Outpatient Center, specifically by Kate Neidler MSW, LSW. Without consultation to Slatoff's medical records or with his treating physicians, Ms. Neidler conditioned Slatoff's acceptance into the drug program upon a 24-hour drug detox of Slatoff's prescribed medications. Following his doctor's recommendations, Slatoff refused the Drug Court Program, but sought admission to the ARD program. The District Attorney's Office refused the request. Slatoff filed a motion to compel his acceptance into ARD. The trial court held a hearing on the motion, ordering the parties to submit expert reports. The Commonwealth relied upon Ms. Neidler's evaluation, while Slatoff submitted a letter from his treating counselor, J. Todd Barlow, MS, LPC, CAADC, and his primary care physician, Dr. Jon E. Brndjar, DO, FACOI, FACP. Based upon the unrebutted medical testimony presented by Slatoff, indicating a high probability of serious and possibly permanent harm to Slatoff should his long standing treatment program be suddenly terminated, the trial court determined that the additional condition of drug court was not reasonably "relat[ed] to the protection of society or to the likelihood of [Slatoff's] successful rehabilitation." Commonwealth v. Ebert , 535 A.2d 178, 180 (Pa. Super. 1987). As such, the trial court determined the Commonwealth abused its discretion in denying Slatoff admission into ARD and ordered him admitted to ARD with weekly drug testing, the results of which are to be transmitted to the Chester County Adult Probation Department.

Master of Social Work, Licensed Social Worker, respectively.

Master of Science, Licensed Professional Counselor, Certified Advanced Alcohol and Drug Counselor, respectively.

Doctor of Osteopathy, Fellow of the American College of Osteopathic Internists, Fellow of the American College of Physicians, respectively.

The Commonwealth now appeals, raising three issues, all of which essentially claim the trial court substituted its own judgment in rejecting the drug court condition for admission to ARD. We disagree.

The Commonwealth's three claims are:

1) The trial court erred in characterizing the District Attorney's actions in denying Slatoff admission in ARD;
2) the trial court improperly substituted its own judgment for the District Attorney's in deciding whether Slatoff was an appropriate candidate for ARD; and
3) the trial court erred in determining the District Attorney abused his discretion in refusing Slatoff admission into the ARD program.

Our standard of review is as follows.

In Commonwealth v. Gano , 781 A.2d 1276, 1279 (Pa. Super. 2001), citing our prior decision in Commonwealth v. Gano , 756 A.2d 680, 682 (Pa. Super. 2000), this Court stated the standard of review to be employed when considering the trial court's denial of admission into ARD is an abuse of discretion standard. It

logically follows that when reviewing an order directing admission into an ARD program, the standard remains the same.

The term 'discretion' imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion, within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will.

Commonwealth v
. Widmer
, 560 Pa. 308, 744 A.2d 745, 753 (2000). "Paramount to the proper implementation of any ARD program is to assure that inclusion/exclusion promotes one or both of the objectives sought to be achieved by the program's existence: protection of the public and/or the rehabilitation of the defendant." Commonwealth v. Darkow , 426 Pa.Super 219, 626 A.2d 1173, 1176 (1993). "The decision to submit [a] case for ARD rests in the sound discretion of the district attorney." Id. at 1174.

Commonwealth v
. Fleming
, 955 A.2d 450, 453 (Pa. Super. 2008).

Here, the trial court conducted a detailed, fact-driven decision, based upon unrebutted medical evidence, evidence that was not reviewed or considered by the Commonwealth when it placed conditions upon Slatoff's admission to ARD. Our review of the certified record, especially the evidence presented to the trial court, leads us to find the trial court correctly held the Commonwealth aptly decided Slatoff was a suitable candidate for ARD, but the Drug Court condition was likely to cause mental and/or physical harm, perhaps serious and permanent harm, to Slatoff, and therefore, was not rationally related to advancing the goals of ARD.

We are aware that the District Attorney's Office possesses broad discretion in admitting a person to ARD.

[A]bsent an abuse of that discretion involving some criteria wholly, patently and without doubt unrelated to the protection of society and/or likelihood of a person's success in rehabilitation, such as race, religion or other such obviously prohibited considerations, the district attorney is free to make his decision based upon what is most beneficial to society and the offender.

. at 451, citing Commonwealth v . Lutz , 495 A.2d 938, 935 (Pa. 1995). However, broad discretion is not unfettered discretion. Forcing Slatoff to choose between his physical and mental health and participation in the ARD program, was not a decision Slatoff should have been required to make. Accordingly, forcing a person into such a choice falls into the category of "other such obviously prohibited considerations" referenced in Fleming and Lutz.

In light of the above, we find no error in the trial court's order, instructing Slatoff be admitted into the ARD program, including weekly drug testing.

We wish to make clear that this matter represents the appropriately rare circumstance in which the District Attorney's Office has abused its discretion in denying a person admittance into ARD. --------

Order affirmed. The parties are directed to attach a copy of the July 10, 2018 Trial Court Opinion in the event of further proceedings.

Judge Dubow joins this memorandum.

Judge Strassburger files a dissenting memorandum. Judgment Entered. /s/ _________
Joseph D
. Seletyn, Esq.
Date: 6/11/2019

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We have edited these claims to a more concise form.