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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
PHILIP J. MCKAY, JR., :
:
Appellant : No. 714 WDA 2014
Appeal from the Judgment of Sentence November 25, 2013
In the Court of Common Pleas of Elk County
Criminal Division No(s).: CP-24-CR-0000303-2011
BEFORE: DONOHUE, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED APRIL 24, 2015
Appellant, Philip J. McKay, Jr., appeals from the judgment of sentence
entered in the Elk County Court of Common Pleas following an open guilty
plea to access device fraud1 and a bench trial for the sole determination of
the amount of restitution. Appellant challenges the amount of restitution
ordered by the court. We affirm.
We state the facts and procedural history as follows.
By criminal complaint filed October 6, 2011,
defendant/appellant Philip James McKay, Jr., was charged
with two counts of access device fraud, 18 Pa. C.S.A.
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 4106(a)(1)(iv).
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4106(a)(1)(ii) and (iv); one count of theft by unlawful
taking or disposition, 18 Pa. C.S.A. 3921(a); one count of
receiving stolen property, 18 Pa. C.S.A. 3921(a); and one
count of theft by failure to make required disposition of
funds received, 18 Pa. C.S.A. 3925(a), with all of the
offenses being graded as felonies of the third degree. The
charges related to funds administered by him for the
Ridgway Volunteer Fire Department (RVFD). Ultimately, as
a result of plea negotiations, the defendant pled guilty on
December 21, 2012, to the offense of access device fraud,
18 Pa. C.S.A. 4106(1)(iv), graded as a misdemeanor of
the first degree.[2]
The record was kept open and sentencing was deferred
to permit counsel for the Commonwealth and [Appellant]
to supplement the evidence with regard to the restitution
claims of the RVFD. After having received the second joint
stipulation of counsel which addressed restitution, this
Court entered Findings and an Order on November 8,
2013, the net effect of which was that the amount of
restitution determined to be owed by the defendant was
$10,698.43. [Appellant] was subsequently sentenced on
November 25, 2013, to a five year period of probation and,
inter alia, to pay restitution in the aforesaid amount to the
RVFD.[3]
A timely post-sentence motion was filed on behalf of the
defendant on December 5, 2013, in the nature of a motion
to modify the sentence imposed by this Court, with the
only issue raised by [Appellant] in his post-sentence
motion being the amount of restitution he was ordered to
pay. Curiously, the amounts disputed by
defendant/appellant in Paragraphs 2, 3 and 4 of his post-
sentence motion totaled only $10,353.92 and therefore
2
In exchange for a lesser gradation, Appellant agreed the court could order
him to pay restitution in an amount exceeding the statutory limit for a
misdemeanor of the first degree. N.T., 12/21/12, at 22. Appellant does not
challenge on appeal this aspect of his plea.
3
Per 18 Pa.C.S. § 1106, the amount of restitution was properly set at the
time of sentencing.
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less than the total amount of restitution ordered to be paid
in the amount of $10,698.43. This disparity is consistent
with the lack of specificity provided by [Appellant] in the
promotion of his claims that the Court erred in its
determination of the amount of restitution owed.
Trial Ct. Op., 6/20/14, at 1-2.
We add that at the December 21, 2012 plea hearing, the court heard
testimony and evidence regarding the amount owed. Approximately 60 out
of over 160 transactions were in dispute. See generally Joint Ex. 1. The
fire chief testified that he had to approve the expense in order for
reimbursement to occur. N.T., 12/21/12, at 52-53. Two additional
witnesses also testified for the Commonwealth about Appellant’s
unauthorized expenditures. See generally id. Appellant also testified
about some of the transactions, contending that many of them were
substantiated by documents or implicitly authorized. See, e.g., id. at 57-58
(referencing a receipt for a December 3, 2008 transaction for $83.96 for
batteries). On March 11, 2013, and August 9, 2013, the parties stipulated
that Appellant owed $5,435.63.4 On November 8, 2013, the court entered
the order above, and denied Appellant’s post-sentence motion on April 3,
2014. Appellant timely appealed and timely filed a court-ordered Pa.R.A.P.
1925(b) statement.
Appellant raises the following issue:
4
Neither stipulation was included as part of the certified record.
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Whether the trial court erred in ordering [Appellant] to pay
restitution to the Ridgway Volunteer Fire Department in
the amount of . . . $10,698.43 . . . due to
Commonwealth’s lack of evidence and [Appellant’s]
testimony showing that the alleged transactions were
legitimate Ridgway Volunteer Fire Department transactions
[sic] and the [trial court] not giving [Appellant] credit for
repayment.
Appellant’s Brief at 4.
In support of his sole issue, Appellant claims the trial court failed to
accept his uncontradicted testimony on the following: (1) disputed
transactions for which he had a receipt; (2) disputed transactions for which
he had no receipt; and (3) payments he made to RVFD. He concedes guilt
to unlawful use of RVFD funds for personal use but maintains the restitution
amount ordered by the trial court does not reflect the actual loss by RVFD or
any payments he made. We are reluctantly constrained to hold Appellant is
due no relief.
As a prefatory matter, we acknowledge that when a defendant enters
a guilty plea, he waives his right to “challenge on appeal all non-
jurisdictional defects except the legality of [his] sentence and the validity of
[his] plea.” Commonwealth v. Pantalion, 957 A.2d 1267, 1271 (Pa.
Super. 2008) (citation omitted). However, “where a plea agreement is an
open one as opposed to one for a negotiated sentence, unquestionably, after
sentencing the defendant can properly request reconsideration as the court
alone decided the sentence and no bargain for a stated term, agreed upon
by the parties, is involved.” Commonwealth v. Coles, 530 A.2d 453, 457
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(Pa. Super. 1987); accord Commonwealth v. Dalberto, 648 A.2d 16, 21
(Pa. Super. 1994) (“We believe that justice requires that we treat this case
as an ‘open’ plea and permit an appeal to the discretionary aspects of
sentencing.”). “[W]here the challenge is premised upon a claim that the
restitution order is excessive, it involves a discretionary aspect of
sentencing.” In re M.W., 725 A.2d 729, 731 n.4 (Pa. 1999) (citation
omitted).
This Court has stated that
[c]hallenges to the discretionary aspects of
sentencing do not entitle an appellant to appellate
review as of right. Prior to reaching the merits of a
discretionary sentencing issue:
[W]e conduct a four part analysis to
determine: (1) whether appellant has filed a
timely notice of appeal, see Pa.R.A.P. 902 and
903; (2) whether the issue was properly
preserved at sentencing or in a motion to
reconsider and modify sentence, see
Pa.R.Crim.P. [720]; (3) whether appellant’s
brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that
the sentence appealed from is not appropriate
under the Sentencing Code, 42 Pa.C.S.A. §
9781(b).
Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing
hearing or raised in a motion to modify the sentence
imposed at that hearing.
Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa. Super. 2006) (some
citations and punctuation omitted).
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[T]he Rule 2119(f) statement must specify where the
sentence falls in relation to the sentencing guidelines and
what particular provision of the Code is violated (e.g., the
sentence is outside the guidelines and the court did not
offer any reasons either on the record or in writing, or
double-counted factors already considered). Similarly, the
Rule 2119(f) statement must specify what fundamental
norm the sentence violates and the manner in which it
violates that norm . . . .
Commonwealth v. Googins, 748 A.2d 721, 727 (Pa. Super. 2000) (en
banc). “Our inquiry must focus on the reasons for which the appeal is
sought, in contrast to the facts underlying the appeal, which are necessary
only to decide the appeal on the merits.” Id.
Instantly, Appellant timely appealed, preserved his issue in his post-
sentence motion, and included a Pa.R.A.P. 2119(f) statement in his brief.
See Evans, 901 A.2d at 533. Appellant’s Rule 2119(f) statement
substantially complies with Goggins, as it alleges that the amount of
restitution was not supported by the record and thus, was excessive.5 See
In re M.W., 725 A.2d at 731 n.4. Accordingly, we examine the merits.
Restitution is mandated by statute. 18 Pa.C.S. § 1106; 42 Pa.C.S. §
9754. Our Supreme Court held that restitution is treated differently when it
is imposed as a condition of probation, as opposed to when it is a sentence:
When imposed as a sentence, the injury to property or
person for which restitution is ordered must directly result
from the crime. However, when restitution is ordered
5
Moreover, the Commonwealth did not object on the basis of a deficient
Rule 2119(f) statement.
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as a condition of probation, the sentencing court is
accorded the latitude to fashion probationary
conditions designed to rehabilitate the defendant
and provide some measure of redress to the victim. .
..
Such sentences are encouraged and give the trial court the
flexibility to determine all the direct and indirect
damages caused by a defendant and then permit the
court to order restitution so that the defendant will
understand the egregiousness of his conduct, be deterred
from repeating this conduct, and be encouraged to live in a
responsible way.
Thus, the requirement of a nexus between the
damage and the offense is relaxed where restitution
is ordered as a condition of probation.
In re M.W., 725 A.2d at 732 (citations omitted and emphases added).
Our Superior Court has similarly reiterated:
While restitution cannot be indiscriminate, an indirect
connection between the criminal activity and the loss is
sufficient.
This more liberal standard for ordering restitution is
consistent with the rehabilitative purposes of probation.
Thus, even without direct causation, a court may properly
impose restitution as a probationary condition if the court
is satisfied that the restitution is designed to rehabilitate
the defendant and to make some measure of
reimbursement to the victim. Such sentences afford
courts latitude to order restitution so that offenders will
understand the egregiousness of their conduct, be
deterred from re-offending, and be encouraged to live
responsibly. They also give sentencing courts flexibility to
determine all direct and indirect damages caused by an
offender.
Commonwealth v. Harriott, 919 A.2d 234, 238 (Pa. Super. 2007)
(citations omitted and emphasis added); cf. Commonwealth v. Reed, 543
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A.2d 587, 589 (Pa. Super. 1988) (holding restitution imposed as part of
sentence “must be supported by the record; it may not be speculative or
excessive.”).
Thus, recompense to the victim is only a secondary
benefit, as restitution is not an award of damages.
Although restitution is penal in nature, it is highly favored
in the law and encouraged so that the criminal will
understand the egregiousness of his or her conduct, be
deterred from repeating the conduct, and be encouraged
to live in a responsible. Thus, restitution, at its core,
involves concepts of rehabilitation and deterrence.
Commonwealth v. Brown, 981 A.2d 893, 895-96 (Pa. 2009) (citations
omitted and emphasis added).
Instantly, there were approximately sixty disputed transactions. See
generally Joint Ex. 1. The court heard witness testimony, accepted
evidence regarding these transactions, and gave each the appropriate
weight. See generally N.T., 12/21/12, at 25-113. We have carefully
reviewed the record and cannot conclude the trial court abused its
discretion. See In re M.W., 725 A.2d at 732 (holding sentencing court
afforded flexibility and latitude to calculate direct and indirect damages when
restitution is ordered as condition of probation); accord Brown, 981 A.2d at
895-96 (holding compensation to victim is secondary benefit); Harriott, 919
A.2d at 238. We affirm the judgment of sentence below. See Evans, 901
A.2d at 533-34.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/2015
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