J-A26026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    NICHOLAS TIMM GINGRICH                     :
                                               :
                       Appellant               :   No. 451 MDA 2017

            Appeal from the Judgment of Sentence February 13, 2017
     In the Court of Common Pleas of York County Criminal Division at No(s):
                            CP-67-CR-0000912-2016


BEFORE: BOWES, J., OLSON, J., and RANSOM, J.

MEMORANDUM BY OLSON, J.:                                 FILED MARCH 20, 2018

        Appellant, Nicholas Timm Gingrich, appeals from the judgment of

sentence entered on February 13, 2017.               We vacate and remand for

resentencing.

        The Commonwealth charged Appellant with one count of theft by

unlawful taking and one count of receiving stolen property. 1 Both charges

arose from Appellant’s theft of $1,590.00 from Planet RYO from August 4,

2015 through November 13, 2015.                See Commonwealth’s Information,

3/7/16, at 1.       As the trial court thoroughly explained:

          On February 10, 2016, [Appellant] filed an application with
          the district attorney’s office for admission to the Accelerated
          Rehabilitative Disposition (ARD) program. On March 16,
          2016, [Appellant] received written notice from the district
____________________________________________


1   18 Pa.C.S.A. §§ 3921(a) and 3925(a), respectively.
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       attorney that he was determined eligible for the ARD
       program. The letter also outlined the conditions [Appellant]
       would need to complete and directed [Appellant] to appear
       on April 26, 2016, before [the trial court,] for admission into
       the ARD program. [Appellant’s] special conditions included
       completing 35 hours of community service within four
       months, complet[ing] a mental health evaluation and
       recommended treatment within six months, and pay[ing]
       restitution in the amount of [$590.00] by April 26, 2016.

       On April 26, 2016, [Appellant] failed to appear before the
       [trial] court.   On April 28, 2016, notice was sent to
       [Appellant] that his application for admission into ARD was
       denied by the district attorney for failure to appear on April
       26, 2016 and for failure to make the required restitution
       payment. . . .

       On May 3, 2016, counsel for [Appellant] submitted to the
       district attorney a request for reconsideration of his
       application into ARD. Counsel indicated that the public
       defender’s office routinely advises any inquiring defendant
       that if he/she cannot make the restitution payment
       required, the inquiring defendant need not appear before
       the [trial] court and the ARD application will be rejected.
       Further, defense counsel asserted that the district attorney’s
       rejection of [Appellant] for failure to pay restitution was
       unconstitutional and cited to [Commonwealth v. Melnyk,
       548 A.2d 266 (Pa. Super. 1988) for support].

       On May 4, 2016, the district attorney’s office sent
       notification to [Appellant,] advising that he was being given
       reconsideration for ARD.       The special conditions were
       slightly amended to increase his community service hours to
       [40; however, Appellant was still required to pay $590.00
       as a condition precedent to being placed into ARD. See
       Amended ARD Conditions, dated 5/4/16, at 2. Appellant]
       was directed to appear before the [trial court] on May 31,
       2016 [for his ARD admission hearing]. . . .

       On May 13, 2016, [Appellant’s] counsel filed a Motion for
       Payment Determination with the [trial court] and requested
       a continuance of the [May 31, 2016] ARD admission
       hearing. [The trial court did not grant Appellant’s requested
       continuance. Moreover, Appellant] did not appear [for the

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       scheduled, May 31, 2016] ARD admission hearing. . . . On
       June 2, 2016, [Appellant] was notified by the district
       attorney’s office that his ARD application was denied as a
       result of his failure to appear in court on May 31, 2016.

       A   hearing    on   [Appellant’s]    Motion    for   Payment
       Determination was held on June 27, 2016. At the hearing
       [Appellant’s] counsel indicated that the relief sought by the
       motion was a determination by the [trial] court as to
       whether [Appellant] could pay the required restitution
       within the ARD time period of [12] months.               The
       Commonwealth asserted that [Appellant] had been given
       two opportunities to come before the [trial] court at the
       previously scheduled ARD hearing[s] held on April 26, 2016
       and May 31, 2016.

       [During the June 27, 2016 hearing,] testimony was offered
       by [Appellant] as to his expenses, however, it was woefully
       inadequate.    [Appellant] testified to rent expense of
       $542.00 per month, electric bill of $75.50 per month (with a
       past due balance of $1376), cell phone bill of $217.90 per
       month (with an installation balance of $268.88), car
       payment of $281.67 per month, and car insurance of
       $74.00 per month. No testimony was offered as to living
       expenses such as food, gasoline, clothing, toiletries, etc.
       The total of the expenses presented by [Appellant] was
       $1191.27 per month against a monthly income of
       $1148.37.

       [Appellant] asserted that his rent expense would decrease
       in the near future when he moved to another location and
       that he would begin to earn commissions at his
       employment[; however,] no verifiable evidence was
       presented regarding these possible future events. [Further,
       Appellant] acknowledged on cross-examination that
       between the time he was charged [with committing the
       offenses] and the June 27, 2016 hearing, he had put aside
       no funds to be paid towards restitution. . . .

       Based upon the testimony offered, the [trial] court directed
       [Appellant] to provide to the district attorney’s office within
       ten days a complete budget, including what ability to pay
       restitution was currently in existence. The Commonwealth
       was directed to review the information and provide any

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        possible alternatives to admitting [Appellant] into the ARD
        program.

        [Appellant] timely submitted a budget to the district
        attorney’s office, with no supporting documentation as to
        how it was calculated that his income had increased by
        [$150.00] per month in less than ten days. No lease
        agreement was included that would support [Appellant’s]
        claim that his rent obligation would decrease from
        [$542.00] per month to [$125.00] per month. Additionally,
        calculations were not accurately made to account for the
        fact that there are more than four weeks in [11] out of the
        [12] months of the calendar year. . . .

        Accepting the information provided on its face with only
        adjustments of the information contained within the budget
        to reality, [the trial court] calculate[d] the budgeted income
        as [$1300.00] per month versus expenses of [$1031.00 per
        month] (not including any payment towards ARD costs or
        restitution).    No explanation was offered as to how
        [Appellant’s] financial condition improved within a week to
        provide him with disposable income of [$269.00,] with more
        expenses[,] than the earlier evidence of [$43.00] of
        disposable income (with less expenses) at the time of the
        [June] 27, 2016 hearing.


Trial Court Opinion, 4/12/17, at 1-7 (internal footnote and some internal

capitalization omitted).

      On July 18, 2016, Appellant filed a “Motion to Compel Admission into

the ARD Program” (hereinafter “Motion to Compel ARD”).             Within the

motion, Appellant asserted his indigency and claimed that the district

attorney had rejected him from ARD simply because he was unable to pay

the required restitution. Appellant’s Motion to Compel ARD, 7/18/16, at 1.

In particular, Appellant claimed that the district attorney rejected him from

ARD because he could not pay the requisite, “up front” $590.00 portion of


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J-A26026-17



his mandatory restitution, as specified in the “ARD Conditions” and

“Amended ARD Conditions.”      Id. at 4.   Appellant claimed that the district

attorney’s action violated his rights under the due process and equal

protection clauses of the United States and Pennsylvania Constitutions. Id.

      The Commonwealth responded to Appellant’s Motion to Compel ARD

and noted that the district attorney did not deny Appellant admission into

the ARD program because of his indigency. Rather, Appellant was rejected

from the program because he failed to appear for his scheduled, May 31,

2016 ARD hearing. Commonwealth’s Memorandum of Law in Opposition to

Appellant’s Motion, 8/22/16, at 6 (“[i]n the instant matter, . . . [Appellant]

had been accepted into the ARD program but was subsequently denied for

failing to appear in court”); see also ARD Denial Notice, 6/2/16, at 1

(“[y]our application for [ARD] has been denied due to the following

reason(s):   failure to appear at ARD court on 5/31/2016”) (some internal

capitalization omitted). In the alternative, the Commonwealth claimed that,

if it wished, it was permitted to reject Appellant from ARD because Appellant

was unable to pay the restitution.    See Commonwealth’s Memorandum of

Law in Opposition to Appellant’s Motion, 8/22/16, at 6-7.

      On October 13, 2016, the trial court entered an order denying

Appellant’s Motion to Compel ARD.

      Following a stipulated bench trial, the trial court found Appellant guilty

of theft by unlawful taking and receiving stolen property. On February 13,




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J-A26026-17



2017, the trial court sentenced Appellant to serve 12 months of probation on

both counts. N.T. Sentencing Hearing, 2/13/17, at 6.

      Appellant filed a timely notice of appeal. In response, the trial court

issued an opinion, in which it explained that it denied Appellant’s Motion to

Compel ARD because: 1) “[o]n two separate occasions, [Appellant] failed to

appear for his ARD admission hearing, which in and of itself would provide

the district attorney with a legitimate basis to deny admission into ARD” and

2) during the June 27, 2016 hearing, Appellant did not demonstrate that he

was willing to make a bona fide effort to pay his restitution.      Trial Court

Opinion, 4/12/17, at 7-12. With respect to the latter reason, the trial court

noted that Appellant continued to spend large amounts of money on

discretionary goods and services, refused to budget for his restitution

payments, and, during the hearing, merely speculated as to his income

sources and expenses. Id. at 10-11.

      Appellant now raises two claims to this Court:

        [1.] Whether the trial court erred in denying [Appellant’s]
        Motion to Compel Admission into the ARD Program where,
        despite being unable to pay a portion of restitution before
        entry into the program, he showed a willingness to make a
        bona fide effort to pay his restitution and there was good
        cause for his failure to appear at his placements due to his
        inability to pay beforehand and the fact that his motion
        regarding same was unresolved[?]

        [2.] Whether the trial court erred in failing to merge
        [Appellant’s] conviction for receiving stolen property into his
        theft by unlawful taking conviction[?]

Appellant’s Brief at 4.


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J-A26026-17



      Appellant first claims that the trial court erred in denying his Motion to

Compel ARD, as the district attorney denied his ARD application on the

impermissible basis that he was indigent and unable to pay his mandatory

restitution.   We conclude that the trial court did not err in denying

Appellant’s motion, as the district attorney did not deny Appellant’s

application because Appellant was indigent or because Appellant was unable

to pay the restitution – but rather because Appellant “fail[ed] to appear at

ARD court on 5/31/2016.” ARD Denial Notice, 6/2/16, at 1.

      We have explained:

         ARD is a privilege, not a right, and the decision to submit a
         matter for ARD is in the sole discretion of the district
         attorney. While the district attorney’s discretion is broad,
         and appellate review of such decisions is narrow, the district
         attorney’s power is not completely unfettered and is subject
         to the following judicially imposed restrictions: 1) an open,
         on-the-record specification of reasons which are 2) related
         to society's protection or the defendant's rehabilitation.
         Where, however, the decision to reject an ARD candidate is
         wholly, patently and without doubt unrelated to the
         protection of society and/or the likelihood of the candidate’s
         success in rehabilitation, the district attorney has abused his
         discretion.

         An abuse of discretion is established where the decision to
         reject a person for ARD is based, for example, on race or
         religion. However, any policy rationally related to society’s
         protection or an individual’s ability to succeed under the
         program is acceptable and is not considered an abuse of
         discretion.

Commonwealth v. Morrow, 650 A.2d 907, 910-911 (Pa. Super. 1994)

(internal quotations and citations omitted).      Moreover, and importantly,

“[t]he Commonwealth does not have the burden of proving the absence of

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J-A26026-17



abuse of discretion; rather, the petitioner has the burden of proving the

Commonwealth's denial of his request was based on prohibited reasons.”

Commonwealth v. Sohnleitner, 884 A.2d 307, 314 (Pa. Super. 2005). If

the petitioner fails to disprove that “the district attorney based his decision

upon criteria related to the protection of society or the likelihood of a

person's success in rehabilitation, then the district attorney's decision will

stand.” Id.

         On appeal, Appellant claims that the district attorney denied his ARD

application on the impermissible basis that he was indigent and unable to

pay his restitution.     Appellant claims that the district attorney’s actions

violate the due process and equal protection clauses of the United States

Constitution and this Court’s pronouncement in Melnyk, 548 A.2d at 266.

Appellant’s claim is based upon a distorted reading of the record and thus

fails.

         In Melnyk, this Court held:

           [I]n ARD determinations, the district attorney and the court
           must inquire into the reasons for the petitioner's inability to
           pay 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 [his] interest in repaying [his] debt to society
           without receiving a criminal record simply because, through
           no fault of [his] own, [he] could not pay restitution. Such a
           deprivation would be contrary to the fundamental fairness
           required by the Fourteenth Amendment.

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J-A26026-17



Melnyk, 548 A.2d at 272.

       Contrary to Appellant’s claims, Melnyk is not applicable to the case at

bar.   Indeed, as the trial court found, the district attorney did not reject

Appellant from the ARD program because of indigency. Rather, as the trial

court held, the district attorney rejected Appellant because he failed to

appear for the May 31, 2016 hearing.2 The evidence supports this factual

finding.

       As noted, on March 16, 2016, the district attorney conditionally

approved Appellant for entry into the ARD program.        The March 16, 2016

letter from the district attorney to Appellant directed Appellant to appear for

an April 26, 2016 ARD admission hearing and to pay $590.00 in restitution

by the hearing date. Appellant, however, did not pay the restitution and did

not appear for the April 26, 2016 hearing. As a result, the district attorney

sent Appellant notice that his application for ARD had been rejected for the

____________________________________________


2 The trial court also held that, during the June 27, 2016 hearing, Appellant
failed to demonstrate that he would make a bona fide effort to pay his
restitution. Trial Court Opinion, 4/12/17, at 10-11. However, as this Court
held in Sohnleitner, “[i]f the decision of the district attorney is related to
the protection of society or the likelihood of a person’s success in
rehabilitation, the trial court is no longer in a position to continue inquiry.”
Sohnleitner, 884 A.2d at 314. Therefore, once the trial court concluded
that the district attorney denied Appellant’s ARD application because
Appellant failed to appear for the May 31, 2016 hearing – and not because of
a genuine inability to pay restitution – the trial court was “no longer in a
position to continue inquiry” into whether the district attorney abused its
discretion in denying Appellant’s ARD application. Id.




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following reasons:   1) “failure to appear at ARD court on 4/26/16” and 2)

“failure to pay restitution due at ARD court.” ARD Denial Notice, 4/28/16, at

1.

        On May 3, 2016, Appellant’s attorney wrote a letter, requesting that

the district attorney reconsider Appellant’s application into the ARD program.

As a result, the district attorney again conditionally accepted Appellant into

the ARD program.       The district attorney’s conditional acceptance notice

directed Appellant to appear for a May 31, 2016 ARD admission hearing and

specifically informed Appellant: “[f]ailure to appear [for the scheduled May

31, 2016 hearing] will result in your case being rejected from the ARD

program and scheduled for trial.” Amended ARD Conditions, dated 5/4/16,

at 1.

        Appellant simply did not appear for the May 31, 2016 ARD admission

hearing – and, during the May 31, 2016 hearing, Appellant’s counsel had no

explanation for Appellant’s failure to appear.     See N.T. ARD Admission

Hearing, 5/31/16, at 10 (when asked why Appellant failed to appear at the

hearing, Appellant’s counsel informed the trial court: “Your Honor, I believe

he’s working today. I would be lying if I said I’ve spoken to him. I have not

since I filed the motion”).    Because of Appellant’s failure to appear, the

district attorney then declared: “[t]he standard thing we do at this point is

to remove him from the list.    If there’s no rationale for it, that’s what we

would do.” Id.




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      Thus, on June 2, 2016, the district attorney sent Appellant notice that

his ARD application had been denied for one reason: “failure to appear at

ARD court on 5/31/2016.” ARD Denial Notice, 6/2/16, at 1.

      Further, during the June 27, 2016 hearing, the Commonwealth

acknowledged that it was not permitted to reject Appellant from the ARD

program if Appellant were indigent and genuinely unable to make the

restitution payments. See N.T. Hearing, 6/27/16, at 4 (the Commonwealth

acknowledged that, after it received notice that Appellant claimed indigency,

there was a need to “examine [Appellant] as to his ability to make the ARD

payments that were requested as required by Commonwealth [v.]

Melnyk”).   N.T. Hearing, 6/27/16, at 4.    However, as the Commonwealth

declared during the June 27, 2016 hearing, Appellant failed to appear for the

May 31, 2016 hearing and, as a result of this failure to appear, the district

attorney rejected Appellant from the program. Id.    Indeed, during the June

27, 2016 hearing, the district attorney repeatedly declared that Appellant

had been rejected from the ARD program for one reason: because he failed

to appear for the scheduled, May 31, 2016 hearing.      The district attorney

informed the trial court:

        When the [initial ARD admission hearing] was scheduled for
        April [26, 2016,] when [Appellant] failed to appear,
        [Appellant] was rejected.

        Defense counsel at that point presented to the
        Commonwealth, I guess a letter [] referencing this Melnyk
        case, indicating that [Appellant] should have an opportunity



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J-A26026-17


        to explain, and the reason that he didn’t appear was he was
        instructed by the Public Defender’s Office not to appear.

        It was on that basis, out of a sense of fairness that we
        wanted to give [Appellant] an opportunity to explain why he
        could not make his payments, and the matter was then
        rescheduled for May 31[, 2016].

        After [Appellant] did not appear on May 31, he was again
        rejected.

                                     ...

        The first hearing I understand. The . . . [public defender’s]
        office had a light fumble. Okay. Well, so in fairness
        requires him back. But, when you don’t show up a
        second time, and made no effort to do that, and
        inquiry was made at that time before [the trial court
        judge], both counsel and I were [] present, and I
        asked, why has he not appeared? And there was no
        answer from defense counsel and we still haven’t
        heard one today.

        This does not – is not a demonstration that he’s going
        to comply with the rehabilitation that ARD is
        supposed to provide.

Id. at 34-35 and 38-39 (emphasis added).

     The trial court viewed the evidence of record and concluded that the

district attorney did not reject Appellant because of indigency – but, rather,

because he failed to appear for his scheduled, May 31, 2016 hearing. Trial

Court Opinion, 4/12/17, at 9-10.      Moreover, the trial court also heard

Appellant’s testimony at the June 27, 2016 hearing and concluded that

Appellant did not demonstrate that he was willing to make a bona fide effort

to pay his restitution. Id. at 10-11. Indeed, the trial court concluded that

Appellant continued to have substantial discretionary expenses, refused to


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J-A26026-17



budget for his restitution payments, and, during the hearing, merely

speculated as to his income sources and expenses. Id. at 10-11.

       The trial court’s factual findings in this case are supported by the

record and demonstrate that the district attorney did not deny Appellant’s

ARD application because of Appellant’s indigency, but rather because

Appellant failed to appear for the May 31, 2016 hearing. 3              As such,




____________________________________________


3  Within the Commonwealth’s brief, the Commonwealth notes that it denied
Appellant’s ARD application because Appellant “fail[ed] to appear in court”
for the May 31, 2016 hearing. Commonwealth’s Brief at 21. Nevertheless,
the Commonwealth also argues in its brief that it could have denied
Appellant’s application based upon Appellant’s indigency and inability to pay
the mandatory restitution. See id. In particular, the Commonwealth argues
that, since “[t]he restitution owed by [Appellant] is a mandatory obligation
pursuant to 18 [Pa.C.S.A. §] 1106 . . . [Appellant’s] ability to pay . . . [is] of
no concern or import to the case at hand.” Id. at 21-22. We are disturbed
by the Commonwealth’s insistence that it could deny Appellant’s application
based upon a genuine inability to pay restitution. Regardless of whether
restitution is mandatory or discretionary at sentencing, a petitioner’s bona
fide inability to pay the restitution obligation is a factor that is “wholly,
patently and without doubt unrelated to the protection of society and/or the
likelihood of the candidate’s success in rehabilitation.” Morrow, 650 A.2d at
910-911. Further, as this Court has recognized, such discrimination violates
the due process clause of the United States Constitution. Melnyk, 548 A.2d
at 270-272.

Nevertheless, since the district attorney did not deny Appellant’s ARD
application upon the impermissible reason that, “through no fault of [his]
own, [Appellant] could not pay restitution,” we conclude that the
Commonwealth’s erroneous argument does not require reversal. See id.




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Appellant’s claim that the district attorney denied his application upon an

impermissible basis fails.4

       For Appellant’s second claim on appeal, Appellant contends that the

trial court “erred in failing to merge [his] conviction for receiving stolen

property into his conviction for theft by unlawful taking.” Appellant’s Brief at

39.   The Commonwealth agrees that Appellant is entitled to relief on this

claim. Commonwealth’s Brief at 34.

       We agree with Appellant and the Commonwealth and conclude that

Appellant is indeed entitled to relief on this claim, as both convictions arose

from the same criminal act and “all of the statutory elements of [theft by

unlawful taking] are included in the statutory elements of [receiving stolen

____________________________________________


4Within his brief, Appellant also claims that his failure to attend the May 31,
2016 hearing should be excused because the Amended ARD Conditions
declared that he was required to pay $590.00 as a condition precedent to
being placed into ARD. See Amended ARD Conditions, dated 5/4/16, at 2.
According to Appellant, he had good cause to simply skip his mandatory
hearing because he was indigent and could not pay the $590.00. Appellant’s
Brief at 31-38.

As Appellant himself acknowledges, his unexplained failure to appear for his
May 31, 2016 hearing “suggest[s] disregard for his obligations [and] an
inability to take the [rehabilitation] program seriously.” Id. at 31. Further,
even if Appellant were unable to pay the $590.00 at the time of the hearing,
Appellant had an obligation to comply with the notice and appear at the
hearing. Certainly, the hearing was Appellant’s only opportunity to explain
why he could not pay the restitution and establish a good faith plan to
satisfy his obligations. Appellant’s failure to comply with the notice indeed
“suggest[s] disregard for his obligations [and] an inability to take the
[rehabilitation] program seriously.” Id.




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property].” 42 Pa.C.S.A. § 9765 (merger of sentences); Commonwealth v.

Young, 35 A.3d 54 (Pa. Super. 2011); see also Commonwealth v.

Wilson, 458 A.2d 244, 245-246 (Pa. Super. 1983) (“[f]or purposes of

sentencing, [] the crime of theft by receiving stolen property merged into

the crime of theft by unlawful taking”).              Further, since the trial court

sentenced Appellant at both counts and never specified, at sentencing,

whether Appellant’s sentences were to run consecutively or concurrently, we

vacate Appellant’s judgment of sentence and remand for resentencing.5 See

N.T. Sentencing Hearing, 2/13/17, at 6 (“We sentence [Appellant] on each

count to 12 months’ probation, plus the cost of prosecution, and direct that

he make restitution to Planet RYO in the amount of $1,590”); see also

Sentencing Order, 2/13/17, at 1-2 (does not specify whether the sentences

are consecutive or concurrent).

       Judgment of sentence vacated.               Case remanded for resentencing.

Jurisdiction relinquished.
____________________________________________


5 Appellant and the Commonwealth claim that the trial court sentenced
Appellant to serve concurrent terms of probation. Appellant’s Brief at 39;
Commonwealth’s Brief at 12. Thus, Appellant asserts that this Court does
not need to remand for resentencing and that we may simply vacate the
merged sentence.         See Appellant’s Brief at 39-40; see also
Commonwealth v. Owens, 649 A.2d 129, 139 (Pa. Super. 1994) (“Where
a correction of sentence is needed, this Court has the option of amending
the sentence directly or remanding to the lower court for resentencing. We
will not remand for resentencing since the sentences in this case are to run
concurrently”). As noted, we do not see where the trial court specified that
the sentences were to run consecutively or concurrently; therefore, we must
vacate the judgment of sentence and remand for resentencing.



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J-A26026-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/20/2018




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