J-S39024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    PAUL JAMES WILLIAM CARSON                  :
                                               :
                       Appellant               :   No. 322 MDA 2018

               Appeal from the Order Entered January 23, 2018
     In the Court of Common Pleas of Luzerne County Criminal Division at
                       No(s): CP-40-CR-0001000-2017



BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                              FILED AUGUST 07, 2018

       Paul James William Carson (Appellant) appeals from the order amending

Appellant’s accelerated rehabilitative disposition (ARD)1 to include restitution.

We quash this appeal because the order is interlocutory.

       On September 3, 2016, Appellant was under the influence of alcohol

when the vehicle he was driving collided with a vehicle driven by Amelia

Seybert. Ms. Seybert sustained significant shoulder injuries in the accident.

She required surgery and missed six weeks of work. N.T., 12/20/17, at 4.

Appellant was charged with driving under the influence (DUI)-general


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1  See 75 Pa.C.S.A. § 3807 (Accelerated Rehabilitative Disposition);
Pa.R.Crim.P. 300-320 (Accelerated Rehabilitative Disposition).
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impairment and DUI-highest rate of alcohol.2

        On July 17, 2017, at the recommendation of the Commonwealth, and

with the consent of Appellant, the trial court entered an order admitting

Appellant into an ARD program.           The order suspended Appellant’s driver’s

license for 60 days and directed that he, inter alia, complete a drug/alcohol

evaluation, report to probation, and pay a $200 fee to the District Attorney’s

Office.

        Three days later, the Commonwealth filed a motion to modify

Appellant’s ARD to include restitution to Ms. Seybert for unreimbursed medical

expenses and lost wages. On December 20, 2017, the trial court conducted

a hearing on the motion.               The Commonwealth stated that due to

“administrative oversight,” it had failed to request restitution for Ms. Seybert,

a single parent who works full-time and incurred out-of-pocket expenses.

N.T., 12/20/17, at 2-3. Ms. Seybert testified that she had surgery on her

rotator cuff and flap, “had a slight tear,” and missed work for six weeks. Id.

at 4.     The Commonwealth asserted that the trial court had jurisdiction to

amend Appellant’s ARD because the requirements of the restitution statute,

18 Pa.C.S.A. § 1106, apply only where there has been a conviction, and here,

there was no conviction. Appellant disagreed, claiming that ARD is considered

a conviction for restitution purposes, and that 18 Pa.C.S.A. § 1106 requires


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2   75 Pa.C.S.A. § 3802(a)(1), (c).


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that restitution be imposed at the time of sentencing.

      On January 23, 2018, the trial court granted the Commonwealth’s

motion and entered an order amending Appellant’s ARD “to reflect restitution

in the amount of $4,345.71.” The trial court relied upon and cited the ARD

statute, which states:

      The defendant must make restitution to any person that incurred
      determinable financial loss as a result of the defendant’s actions
      which resulted in the offense.

75 Pa.C.S.A. § 3807(b)(1)(v). See also Trial Court Opinion, 1/23/18, at 1.

      Appellant timely appealed.      Both the trial court and Appellant have

complied with Pa.R.A.P. 1925. On appeal, Appellant presents a single issue

for our review:

      Whether the Lower Court erred when it granted the
      Commonwealth’s motion to modify conditions of ARD to include
      restitution, where restitution was not included in the original ARD
      order/disposition and where [Appellant] had already agreed to the
      conditions of ARD and was admitted into the program.

Appellant’s Brief at 9.

      Appellant argues that the trial court erred in adding restitution to the

terms of his ARD.         Appellant maintains that admission into ARD “is the

equivalent of sentencing” for 18 Pa.C.S.A. § 1106(a) purposes, and that under

that statute, a trial court shall determine the amount of restitution at the time




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of sentencing.3 Appellant’s Brief at 16-17. Appellant contends that his due

process rights were violated because, when he entered ARD, he was unaware

that he would be responsible for restitution, and thus he did not make an

informed decision about entering ARD.4


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3 The statute states: “Upon conviction for any crime wherein . . . the victim
suffered personal injury directly resulting from the crime, the offender shall
be sentenced to make restitution in addition to the punishment prescribed
therefor.” 18 Pa.C.S.A. § 1106(a).
4 Appellant also cites Commonwealth v. Pleger, 934 A.2d 715 (Pa. Super.
2006), as holding that any “restitution was required to be determined and
imposed . . . at the time of sentencing” and “that an ARD disposition was
considered a conviction (prior) for purposes of the DUI statute, and
consequently, for determination of restitution.” Appellant’s Brief at 16. His
interpretation of this decision is mistaken. In Pleger, the defendant entered
ARD in 1996 for a DUI charge, and eight years later, in 2004, committed DUI
again and eventually pled guilty. Pleger, 934 A.2d at 717. At the time he
entered ARD, 75 Pa.C.S.A. § 3731(e)(2) provided that when a defendant was
convicted of DUI, any entry into ARD within the past 7 years would be
considered a “first conviction” for sentencing purposes (the latter conviction
would be subject to a lengthier mandatory minimum sentence). Id. At the
time of his 2004 conviction, however, Section 3731(e)(2) had been repealed
and replaced with 75 Pa.C.S.A. § 3806(b), under which the “look back” period
was enlarged to 10 years. Id. The first question before this Court was
whether the defendant was subject to the 7-year “look back” period in effect
at the time of his ARD or the 10-year “look back” period in effect when he
committed DUI in 2004. Id. at 717-718. This Court held that the latter
applied. Id. at 719. In relying on Pleger, Appellant wholly fails to address
this factual context, and his application of the oversimplified holding, “that an
ARD disposition was considered a conviction (prior) for purposes of the DUI
statute,” to this case is unfounded. See Appellant’s Brief at 16.

      Furthermore, the Pleger Court considered whether the trial court was
required to impose restitution to compensate the victim for injuries, despite
the fact that prior to sentencing, the victim accepted a settlement from the
defendant’s insurance carrier. This holding concerned sentencing for the



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       In examining ARD, we are mindful that:

          ARD . . . is a pretrial disposition of certain cases, in which . . .
       the Commonwealth agrees to suspend prosecution for an agreed
       upon period of time in exchange for the defendant’s successful
       participation in a rehabilitation program, the content of which is
       to be determined by the court and applicable statutes.

          . . . [A]fter [a defendant] has completed the program
       successfully, the charges against him will be dismissed, upon
       order of court. If he does not complete the ARD successfully, he
       may be prosecuted for the offense with which he was charged.
       The district attorney’s utilization of ARD is optional under the
       rules.

Commonwealth v. Lebo, 713 A.2d 1158, 1161 (Pa. Super. 1998).

       We have held:

           The general rule in Pennsylvania is that a defendant may
       appeal only from a final judgment of sentence and an appeal from
       any prior order will be quashed as interlocutory.          An ARD
       determination provides no exception to the general rule. Rather,
       it constitutes a non-final proceeding in which the resolution of the
       criminal prosecution is merely held in abeyance. Acceptance of
       ARD is an interlocutory matter and consequently is not appealable.
       ...

       [P]roceeding under the ARD program is not a right.               [A
       defendant’s] remedy, if he is dissatisfied with the terms and
       conditions of the ARD program, is to notify the trial court and the
       District Attorney . . . regarding his non-acceptance. . . . [T]he
       trial court may then enter a non-appealable interlocutory order
       terminating [the defendant’s] participation in the program. [The
       defendant’s] case would then proceed to the trial which has been
       postponed during the term of [his] participation in the ARD
       program.



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defendant’s DUI conviction. Id. As we discuss infra, here, Appellant has
not been convicted, and thus the holding in Pleger does not apply.


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Commonwealth v. Getz, 598 A.2d 1309, 1310 (Pa. 1991) (citations

omitted). See also Commonwealth v. Horn, 172 A.3d 1133, 1137-38 (Pa.

Super. 2017) (citing Getz and quashing defendant’s appeal from an order

denying his petition to withdraw from ARD).

       Instantly, Appellant was not convicted of any crime and the trial court

did not impose a judgment of sentence. Rather, Appellant was charged with

two counts of DUI and the trial court, at the Commonwealth’s recommendation

and with the agreement of Appellant, admitted Appellant into an ARD program

pursuant to 75 Pa.C.S.A. § 3807. Under these circumstances5, and consonant

with Getz and Horn, the court’s order amending Appellant’s ARD to add

restitution is not an appealable order. See Horn, 172 A.3d at 1137-1138;

Getz, 598 A.2d at 1310. Accordingly, this appeal is not properly before us.

       Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/2018
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5 As in Horn, “the challenged order is not defined as appealable as of right
(per Pa.R.A.P. 311), Appellant did not ask for or receive permission to appeal
the interlocutory order (per Pa.R.A.P. 312), and Appellant has not provided
this Court with any argument as to whether—or how—the order could satisfy
the collateral order doctrine (per Pa.R.A.P. 313).” Horn, 172 A.3d at 1138.


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