Crimes of Deceptive or Fraudulent Business Practices and Home Improvement Fraud merge for sentencing purposes; Theft merges with neither.

The Superior Court has decided the case of Commonwealth v. Hill, No. 1416 MDA 2015 (May 31, 2016), determining that a conviction of Theft does not merge with convictions of Fraudulent Business Practices and Home Improvement Fraud for sentencing purposes; however, the convictions of Fraudulent Business Practices and Home Improvement Fraud do merge with one another.

FACTS

Hill agreed to perform certain home improvements at a residence; took money to do so; and, failed to perform the services requested. After the victims requested a refund of their money, they never heard back from Hill and his phone number was disconnected.

Hill was charged with one count each of Theft by Unlawful Taking or Disposition, Deceptive or Fraudulent Business Practices, and Home Improvement Fraud. Following a jury trial, Hill was convicted of all charges. On that same day, the trial court sentenced Hill to consecutive prison terms of one to five years on each of his convictions, for an aggregate prison sentence of three to fifteen years (ouch!)

ISSUE

Whether some or all of the charges merged for sentencing purposes?

HOLDING

Judgment of sentence was vacated and Hill remanded for resentencing after the Superior Court concluded that Theft does not merge with Fraudulent Business Practices and Home Improvement Fraud for sentencing purposes; however, the Fraudulent Business Practices and Home Improvement Fraud do merge with one another.

REASONING

The Superior Court outlined the standards to be applied in determining merger issues. Specifically, no crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense. And, where crimes merge for sentencing purposes, the court may sentence the defendant only on the higher graded offense.

To determine whether offenses are greater and lesser included offenses, the courts are to compare the elements of the offenses at issue. If the elements of the lesser offense are all included within the elements of the greater offense and the greater offense has at least one additional element, which is different, then the sentences merge. If both crimes require proof of at least one element that the other does not, then the sentences do not merge.

In this case, it was undisputed that Hill’s crimes arose from the same criminal act. Thus, the only question was whether the elements of one or more offenses were subsumed within the elements of the other offenses.

The Superior Court then stated that it agreed with the trial court’s determination that the theft violation did not merge with the other two violations for sentencing purposes. The theft violation required proof of an element that the other violations do not: namely, that the defendant exercised unlawful control over moveable property. Additionally, the crimes of deceptive business practices and home improvement fraud required proof of additional elements that the theft violation does not require (i.e., course of business, failure to perform services or provide materials, etc.). Thus, merger was not appropriate for those offenses.

As to Hill’s claim that the statutory elements of deceptive or fraudulent business practices coincided with those of home improvement fraud, the trial court ultimately conceded in its Opinion, without explanation, that these violations should have merged for sentencing purposes, and that it had erred by failing to merge them when sentencing Hill.

The Superior Court compared the elements of these two offenses, concluding that all three elements of deceptive or fraudulent business practices are all included within the first three elements of home improvement fraud, and home improvement fraud has at least one additional element.

Therefore, Hill’s convictions for these crimes should have merged for sentencing purposes.

Sentence vacated and the matter remanded for resentencing.

http://www.pacourts.us/assets/opinions/Superior/out/J-S24008-16o%20-%201026779897188307.pdf?cb=1

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