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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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, OTT, and STRASSBURGER,* JJ.

DISSENTING MEMORANDUM BY STRASSBURGER, J.:FILED SEPTEMBER 08, 2016

     I believe the Majority and the trial court erred when overlooking

Johnson’s monthly rent payment. Accordingly, I respectfully dissent.

     In determining Johnson was capable of affording the costs associated

with admission into the accelerated rehabilitative program (ARD), the trial

court found and the Majority accepted that “[w]ith the exception of the

student loans, all of [Johnson’s] expenses are discretionary.”   Trial Court

Opinion, 10/6/2015, at 3.    In finding as such, the trial court ignored the

testimony provided by Johnson that she has, inter alia, a $700.00 monthly

rent payment. See N.T., 6/22/2015, at 3.




* Senior Judge assigned to the Superior Court.
J-S31030-16


     Rent is not a discretionary expense.   Once it is properly counted as

non-discretionary, it seems Johnson would be unable to afford the payment

plan as offered by the Adams County District Attorney’s office. Therefore, I

would vacate Johnson’s judgment of sentence and reverse the order that

denied her motion to compel admission to the ARD program and remit costs

of program.




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