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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES BARNETT GEFSKY,
Appellant No. 1157 WDA 2014
Appeal from the Judgment of Sentence Entered June 20, 2014
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0003400-2010
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and WECHT, JJ.
MEMORANDUM BY SHOGAN, J.: FILED: MAY 1, 2015
Appellant, James Barnett Gefsky, appeals from the judgment of
sentence entered June 20, 2014, following his conviction by a jury of theft
by failure to make required disposition of funds and misapplication of
entrusted property. We affirm.
Appellant, an attorney, had sought admission to Westmoreland
County’s Accelerated Rehabilitative Disposition (“ARD”)1 program by filing a
Motion to Compel ARD on April 13, 2012. The trial court held a hearing on
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1
ARD “is a pre-trial disposition of certain cases, in which the attorney for
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.” Commonwealth v. LaBenne, 21 A.3d 1287,
1291 (Pa. Super. 2011) (quoting Commonwealth v. Lutz, 495 A.2d 928,
931 (Pa. 1985)).
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the motion on December 14, 2012, and denied the motion that day. Order,
12/14/12. Following a three-day trial on April 7–9, 2014, a jury convicted
Appellant of the above charges. On June 20, 2014, the trial court sentenced
Appellant to three years of intermediate punishment (intensive probation)
with six months of house arrest.
Appellant filed a notice of appeal to this Court on July 18, 2014. The
trial court directed Appellant to comply with Pa.R.A.P. 1925, and Appellant
filed a timely Rule 1925(b) statement on August 29, 2014. In lieu of an
opinion, the trial court referred this Court to the transcript of the December
14, 2012 hearing. Appellant raises the following single issue for our review:
“Did the pretrial motions court judge err and commit an abuse of discretion
in denying Defendant’s Motion to Compel ARD in this case?” Appellant’s
Brief at 1.
The standard of review when considering the trial court’s denial of
admission to ARD is an abuse of discretion. Commonwealth v. Fleming,
955 A.2d 450, 453 (Pa. Super. 2008). “In general, the district attorney has
the responsibility for determining which cases will be recommended for entry
into the ARD program.” Id. (citing Commonwealth v. Lutz, 495 A.2d 928
(Pa. 1985)). A district attorney has broad discretion in submitting or
denying a case for ARD. In Commonwealth v. LaBenne, 21 A.3d 1287
(Pa. Super. 2011), this Court reaffirmed the proposition that “district
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attorneys have the sole discretion in moving for admission of a defendant
into ARD[.]” Id. at 1291. We stated therein:
[T]he decision to submit the case for ARD rests in the sound
discretion of the district attorney, and absent an abuse of that
discretion involving some criteria for admission to ARD wholly,
patently and without doubt unrelated to the protection of
society and/or the likelihood of a person’s success in
rehabilitation, such as race, religion or other such obviously
prohibited considerations, the attorney for the Commonwealth
must be free to submit a case or not submit it for ARD
consideration based on his view of what is most beneficial for
society and the offender. Once the Commonwealth denies a
defendant admission into ARD, “the trial court’s role is limited to
whether the Commonwealth abused its discretion.” This Court
has emphasized that “[t]he Commonwealth does not have the
burden of proving the absence of abuse of discretion; rather, the
petitioner has the burden of proving the Commonwealth’s denial
of his request was based on prohibited reasons.”
Id. (internal citations omitted) (emphasis in original). “A district attorney
may base a decision to grant or deny admission to ARD on any consideration
related to the protection of society and the rehabilitation of the defendant.”
Commonwealth v. Sohnleitner, 884 A.2d 307, 313 (Pa. Super. 2005)
(quoting Commonwealth v. Jagodzinski, 729 A.2d 172, 176 (Pa. Super.
1999)).
Appellant contends that the Westmoreland County District Attorney
offered ARD participation to “citizens accused of theft and related charges”
and to “other attorneys accused of first[-]time non-violent offenses.”
Appellant’s Brief at 6. Appellant suggests he was denied ARD admission
because “he was a licensed attorney and member of the PA Bar at the time
of the alleged offenses.” Id. at 11. While acknowledging the district
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attorney’s “sole discretion as to the admission of candidates for ARD,”
Appellant avers that “the prosecutor may not summarily reject a person” for
admission. Id. at 12. He relies upon Lutz and Commonwealth v. Gano,
781 A.2d 1276, 1278 (Pa. Super. 2001).
As noted, Lutz established that the decision to submit a case for ARD
rests in the sound discretion of the district attorney; absent an abuse of that
discretion involving some criteria for admission unrelated to society’s
protection or the likelihood of a person’s rehabilitative success, the district
attorney must be free to submit or deny a case for ARD based on his view of
what is most beneficial for society and the offender. Lutz, 495 A.2d at 935.
In establishing the parameters of this prosecutorial discretion, the Lutz
Court made clear that because the judgment regarding who can benefit from
ARD is subjective, and because society may be seriously damaged by the
wrong judgment, the district attorney is not to be faulted if he errs on the
side of caution. Id. at 934.
In Gano, a decision by the trial court to deny a police officer entry into
the ARD program for first-time DUI offenders was overturned by this Court.
We concluded therein that a general prohibition against law enforcement
officers receiving ARD could not stand when an average citizen in the same
circumstances would have been admitted. Our review therein disclosed a
manifest abuse of discretion, in that the appellant in Gano “was admitted
when he was seen as an average citizen, and denied when he was known to
be a law enforcement officer.” Gano, 781 A.2d at 1279.
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Gano is distinguishable from the instant case. There, the district
attorney recommended the defendant’s participation in ARD, and the trial
court admitted the defendant into the ARD program. The next day,
however, “the judge vacated the order pertaining to [the defendant] after
reading a morning newspaper article reporting that he had granted ARD to a
Pennsylvania State Trooper charged with DUI.” Gano, 781 A.2d at 682.
Following a new hearing after which the trial court denied the defendant’s
ARD application, “the court claimed that ‘when it denied ARD, [it] did so in
large measure because of [the defendant’s] status as a law enforcement
officer.’” Id.
In the case sub judice, in contrast, the Commonwealth set forth
specific and articulable reasons why it was not recommending Appellant for
ARD participation. At the December 14, 2012 hearing on Appellant’s Motion
to Compel ARD, the Commonwealth set forth the following reasons for its
denial:
Number one, that he was an attorney at the time that this
occurred. Number two, the victims in the theft were, in fact,
clients of his at the time of this offense. Number three, that he
was, in fact, in a fiduciary relationship with those clients
representing those clients at the time the theft of these funds
occurred. Number four, the sheer amount of money that was
involved is a very large amount that’s alleged in the Information.
That was a factor that was considered. Number five, the overall
position of the District Attorney’s Office that certain professions,
you know, should be held in sort of a higher regard in our
society . . . .
N.T., 12/14/12, at 15–16.
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Here, the amount of the theft was more than $71,527.00. N.T.,
12/14/12, at 9. While testimony established that Appellant repaid one
client, and the client security fund repaid another client $5,000.00,
consideration of the amount of the theft was not a prohibited reason for
denial of ARD participation. Moreover, the above reasons make clear that
Appellant was not denied recommendation to ARD simply because he was an
attorney, but because he stole his client’s funds while in a fiduciary
relationship with his clients.
“[T]he prosecution is barred only from considering impermissible
criteria, such as race, religion, or other obviously prohibited factors.”
Commonwealth v. Barton-Martin, 5 A.3d 363, 367 (Pa. Super. 2010).
We are not inclined to equate the reasons cited by the Commonwealth as
synonymous with such factors. We emphasize that “the attorney for the
Commonwealth must be free to submit a case or not submit it for ARD
consideration based on his view of what is most beneficial for society and the
offender.” Lutz, 495 A.2d at 935. Under the circumstances of this case and
in light of the broad discretion afforded the Commonwealth in making
decisions regarding ARD, we find no abuse of discretion by the trial court’s
denial of ARD participation.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/1/2015
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