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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MATTHEW HEALEY,
Appellant No. 1431 WDA 2014
Appeal from the Judgment of Sentence March 26, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0006994-2013
BEFORE: SHOGAN, OLSON, and WECHT, JJ.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 16, 2015
Appellant, Matthew Healey, appeals from the judgment of sentence
entered on March 26, 2014, in the Allegheny County Court of Common
Pleas. After careful review, we affirm in part, vacate in part, and remand
with instructions.
The trial court set forth the relevant facts and procedural history of
this matter as follows:
On January 23, 2014, [Appellant] pled guilty to two counts
of theft and two counts of receiving stolen property. As the facts
unfolded, [Appellant] was hired to do electrical work at [the
victim’s] home. He did the work, which was described as “very
good” but he also stole jewelry and 2 guns. The value of that
jewelry and the firearms equaled $7,000.00. [Guilty Plea
Transcript] “GPT”, 7. When that representation was made by
government counsel, defense counsel voiced no objection to that
valuation. GPT, 7. The Court then signed a form restitution
order for $7,000 that same day. A pre-sentence report (“PSR”)
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was ordered in anticipation of sentencing. The PSR revealed no
information about restitution.
At sentencing on March 26, 2014, both parties … reviewed
the PSR. Sentencing Transcript (“ST”), pgs. 3, 5. No one had any
additions or corrections regarding restitution. ST, 5-6. The
hearing concluded without any discussion or objection about the
$7,000 in restitution ordered 2 months earlier.
On April 3, 2014, [Appellant] filed a post-sentence motion
with a single focus -- the restitution. He said the Court ordered
restitution without the government introducing “any evidence or
testimony regarding the specific value of the items stolen.” Post-
Sentence Motion, (“PSM”), ¶2. (April 3, 2014).
Trial Court Opinion, 12/11/14, at 1-2 (footnotes omitted).1
On August 8, 2014, Appellant’s post-sentence motion was denied by
operation of law,2 and Appellant filed a timely appeal on September 2, 2014.
Both the trial court and Appellant have complied with Pa.R.A.P. 1925.
In this appeal, Appellant raises one issue for this Court’s
consideration:
Whether the restitution award of $7,000.00, because it is
speculative and unsupported by the record, is illegal?
Appellant’s Brief at 4.
Our standard of review is as follows:
It is well settled that a challenge to a court’s authority to impose
restitution is generally considered to be a challenge to the
legality of the sentence. A challenge to the legality of a sentence
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1
The $7,000.00 in restitution was ordered as a condition of Appellant’s
probation. Order of Sentence, 3/26/14, at Count 1.
2
Pa.R.Crim.P. 720(B)(3)(a).
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... may be entertained as long as the reviewing court has
jurisdiction. It is also well-established that if no statutory
authorization exists for a particular sentence, that sentence is
illegal and subject to correction. An illegal sentence must be
vacated. Issues relating to the legality of a sentence are
questions of law; as a result, our standard of review over such
questions is de novo and our scope of review is plenary.
Commonwealth v. Gentry, 101 A.3d 813, 816-817 (Pa. Super. 2014)
(internal citations and quotation marks omitted).
Here, the applicable restitution statute provides, in relevant part, as
follows:
§ 1106. Restitution for injuries to person or property
(a) General rule.--Upon conviction for any crime wherein
property has been stolen, converted or otherwise unlawfully
obtained, or its value substantially decreased as a direct result of
the crime, or 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.
(b) Condition of probation or parole.--Whenever restitution
has been ordered pursuant to subsection (a) and the offender
has been placed on probation or parole, his compliance with such
order may be made a condition of such probation or parole.
(c) Mandatory restitution.--
(1) The court shall order full restitution:
(i) Regardless of the current financial
resources of the defendant, so as to
provide the victim with the fullest
compensation for the loss. The court
shall not reduce a restitution award by
any amount that the victim has received
from the Crime Victim’s Compensation
Board or other governmental agency but
shall order the defendant to pay any
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restitution ordered for loss previously
compensated by the board to the Crime
Victim’s Compensation Fund or other
designated account when the claim
involves a government agency in
addition to or in place of the board. The
court shall not reduce a restitution award
by any amount that the victim has
received from an insurance company but
shall order the defendant to pay any
restitution ordered for loss previously
compensated by an insurance company
to the insurance company.
* * *
(2) At the time of sentencing the court shall specify
the amount and method of restitution. In
determining the amount and method of restitution,
the court:
(i) Shall consider the extent of injury
suffered by the victim, the victim’s
request for restitution as presented to
the district attorney in accordance with
paragraph (4) and such other matters as
it deems appropriate.
(ii) May order restitution in a lump sum,
by monthly installments or according to
such other schedule as it deems just.
(iii) Shall not order incarceration of a
defendant for failure to pay restitution if
the failure results from the offender’s
inability to pay.
(iv) Shall consider any other preexisting
orders imposed on the defendant,
including, but not limited to, orders
imposed under this title or any other
title.
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(3) The court may, at any time or upon the
recommendation of the district attorney that is based
on information received from the victim and the
probation section of the county or other agent
designated by the county commissioners of the
county with the approval of the president judge to
collect restitution, alter or amend any order of
restitution made pursuant to paragraph (2),
provided, however, that the court states its reasons
and conclusions as a matter of record for any change
or amendment to any previous order.
(4) (i) It shall be the responsibility of the
district attorneys of the respective
counties to make a recommendation to
the court at or prior to the time of
sentencing as to the amount of
restitution to be ordered. This
recommendation shall be based upon
information solicited by the district
attorney and received from the victim.
(ii) Where the district attorney has
solicited information from the victims as
provided in subparagraph (i) and has
received no response, the district
attorney shall, based on other available
information, make a recommendation to
the court for restitution.
(iii) The district attorney may, as
appropriate, recommend to the court
that the restitution order be altered or
amended as provided in paragraph (3).
18 Pa.C.S. § 1106 (a), (b), and (c).
Additionally:
Restitution is a creature of statute and, without express
legislative direction, a court is powerless to direct a defendant to
make restitution as part of his sentence. Commonwealth v.
Harner, 533 Pa. 14, 617 A.2d 702, 704 (1992). Where that
statutory authority exists, however, the imposition of restitution
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is vested within the sound discretion of the sentencing judge.
Commonwealth v. Keenan, 853 A.2d 381, 383
(Pa.Super.2004); see also id. (stating that “[t]he primary
purpose of restitution is rehabilitation of the offender by
impressing upon him that his criminal conduct caused the
victim’s personal injury and that it is his responsibility to repair
the injury as far as possible.”).
Commonwealth v. Kinnan, 71 A.3d 983, 986 (Pa. Super. 2013).
In a criminal case, restitution may be imposed either as a direct
sentence, 18 Pa.C.S. § 1106(a), or as a condition of probation under 42
Pa.C.S. § 9754. When imposed as a sentence, the injury to property or
person for which restitution is ordered must directly result from the crime,
but when restitution is ordered as a condition of probation, as it was in the
instant case, the sentencing court has discretion to fashion probationary
conditions designed to rehabilitate the defendant and provide some measure
of redress to the victim. Kinnan, 71 A.3d at 986-987. “When restitution is
imposed as a condition of probation under [42 Pa.C.S. §] 9754, the required
nexus between the defendant’s criminal conduct and the victim’s loss is
relaxed.” Id. (citation omitted). “However, there must be at least an
indirect connection between the criminal activity and the loss.” Id. (citation
omitted). “[T]o the extent a sentence of probation is imposed to make
restitution for losses caused by the defendant’s criminal conduct, there
should be proof of the damages suffered.” Id. (citation omitted). Finally,
where the sentencing court imposes restitution as a condition of probation,
the trial court is required to determine what loss or damage has been caused
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and what amount of restitution the defendant can afford to pay. Id. at 987
(citing 42 Pa.C.S. § 9754(c)(8)).
In the case at bar, Appellant argues that the Commonwealth failed to
meet its burden. Appellant avers that “at both the guilty plea and
sentencing hearings, the Commonwealth produced no testimony or other
evidence whatsoever detailing the nature of the jewelry and firearms that
[Appellant] had stolen. . . . [T]he award of restitution is speculative and
unsupported by the record; it is illegal and must be vacated.” Appellant’s
Brief at 11 (emphasis in original). After review, we are constrained to agree
with Appellant that the Commonwealth failed to provide any evidence that
supports restitution in any dollar amount.
While restitution was made a condition of Appellant’s probation, and
therefore, the nexus between Appellant’s theft and the victim’s loss is
relaxed, there still must be proof of damages and consideration of
Appellant’s ability to pay. Kinnan, 71 A.3d at 986-987; 42 Pa.C.S.
§ 9754(c)(8). Here, the restitution form baldly states that the items stolen
had a value of $7,000.00; the record also reveals that certain of the stolen
items were recovered. Restitution Order, 1/23/14; Complaint, 5/6/13, at 2;
and N.T. (Sentencing), 3/26/14, at 9. There is nothing in the record that
reflects the value of the items taken, the value or condition of the items
recovered, or how the trial court arrived at $7,000.00. Additionally, and
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importantly, there was no evaluation of Appellant’s ability to pay. Kinnan,
71 A.3d at 987 (citing 42 Pa.C.S. § 9754(c)(8)).
For these reasons, we conclude that the restitution order of $7,000.00
is unsupported by the record resulting in an illegal sentence of restitution.3
Gentry, 101 A.3d at 819. Accordingly, we vacate the judgment of sentence
insofar as it pertains to restitution, and we remand for a hearing at which
the trial court shall determine the loss suffered by the victim, what amount
of restitution, if any, is appropriate, and Appellant’s ability to pay.
Commonwealth v. Atanasio, 997 A.2d 1181, 1184 (Pa. Super. 2010); 18
Pa.C.S. § 1106; and 42 Pa.C.S. § 9754(c)(8). Appellant’s judgment is
affirmed in all other aspects.
Judgment of sentence affirmed in part and vacated in part. Case
remanded with instructions. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2015
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3
We note that the Commonwealth and the trial court state that Appellant
was aware that $7,000.00 was the claimed amount of restitution, and
Appellant did not object. Commonwealth’s Brief at 9; Trial Court Opinion,
12/11/14, at 3-4. However, we find this point of no moment – a criminal
defendant cannot agree to an illegal sentence. Gentry, 101 A.3d at 819.
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