J-S53019-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHELLY LYNN BARROW,
Appellant No. 202 MDA 2016
Appeal from the Order December 30, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0005070-2014
BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 13, 2016
Appellant, Shelly Lynn Barrow, appeals from the December 30, 2015
order amending the order of restitution included in her October 28, 2015
judgment of sentence.1 Appellant’s counsel has filed a petition seeking to
withdraw her representation and a brief pursuant to Anders v. California,
386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009), which govern a withdrawal from representation on direct appeal.
Appellant has not filed a response to counsel’s petition. After careful review,
we grant counsel’s petition to withdraw and affirm the order of restitution.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
For reasons explained subsequently, Appellant’s appeal properly lies from
the December 30, 2015 order of restitution. The caption has been corrected
to reflect the same.
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This appeal stems from the following events. On September 25, 2014,
at approximately 1:30 p.m., Appellant and Irian Price (“the victim”) were
involved in an auto accident at the intersection of Horseshoe Road and Old
Philadelphia Pike in Lancaster County. Affidavit of Probable Cause, 10/1/14,
at 1. Upon arrival at the scene, police noted that Appellant appeared to be
intoxicated. Id. Appellant was unable to satisfactorily perform field sobriety
tests conducted by officers. Id. Appellant was administered a breathalyzer
test, upon conclusion of which her blood alcohol content (“BAC”) was
determined to be 0.17% within two hours of driving. Id. As a result,
Appellant was charged with driving under the influence (“DUI”), general
impairment; DUI, highest rate of alcohol; and driving at an unsafe speed.
Criminal Information, Docket No.: CP-36-CR-0005070-2014, 11/26/14, at 1.
On October 28, 2015, Appellant entered an open plea of guilty to all
charges. On the same date, Appellant was sentenced to seventy-two hours
to six months of incarceration; in lieu of incarceration, Appellant could
choose to serve thirty days under house arrest. N.T., 10/28/15, at 10-12.
Appellant was also sentenced to pay costs, as well as restitution in the
amount of $916.00. Id. The $916.00 restitution was to replace the victim’s
eyeglasses that purportedly were broken as a result of the accident. Id.
Appellant challenged the apparent excessive cost of replacement of the
glasses and the victim’s failure to establish that Appellant had caused the
damage to the glasses during the accident. Id. at 5-7, 9. Accordingly,
Appellant requested that a restitution hearing be scheduled. Id. at 9. At
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the conclusion of the sentencing hearing, the trial court stated the following:
“Restitution is set at $916 at this point with the understanding that either
some type of satisfactory explanation will be provided to the defense or else
we will schedule a hearing to determine further.” N.T., 10/28/15 at 12.2
A restitution hearing was scheduled and took place on December 30,
2015. During that hearing, additional evidence regarding the accident and
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2
The court is required to specify the amount of restitution at sentencing,
but may modify its order at any time provided that it states its reasons for
any modification on the record. See Commonwealth v. Dietrich, 970
A.2d 1131, 1134 (Pa. 2009) (where the trial court set the original restitution
amount at time of sentencing based on information presented and at the
same time stated that subsequent fact-finding regarding restitution may be
required and the restitution order may be modified, the original sentence
was not rendered illegal.); see also Commonwealth v. Dinoia, 801 A.2d
1254, 1257 (Pa. Super. 2002) (“[18 Pa.C.S. 1106(c)] mandates an initial
determination of the amount of restitution at sentencing. This provides the
defendant with certainty as to his sentence, and at the same time allows for
subsequent modification, if necessary.”). Compare Commonwealth v.
Mariani, 869 A.2d 484, 486 (Pa. Super. 2005) (where the trial court at the
time of sentencing declined to set any amount of restitution and instead
scheduled a subsequent hearing on the restitution issue, the restitution
sentence was illegal.).
Here, the trial court specified the amount of restitution at sentencing as
required by 18 Pa.C.S. § 1106(c)(2). The sentencing court’s indication that
it might modify the order does not invalidate it. Dietrich, 970 A.2d at 1134.
Furthermore, we note that it was Appellant who disputed the restitution
amount imposed at the sentencing hearing and requested a restitution
hearing. “Although it is mandatory under section 1106(c) to award full
restitution, it is still necessary that the amount of the ‘full restitution’ be
determined under the adversarial system with considerations of due
process.” Commonwealth v. Ortiz, 854 A.2d 1280, 1282 (Pa. Super.
2004) (explaining that the defendant may challenge the accuracy of the bills
and has the right to bring in his own expert to assess whether the amount
should be less).
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damaged property was introduced. N.T., 12/30/15, at 3-39. Based on the
evidence presented, the trial court determined that $30.00 for an eye exam
was improperly included and should be deducted from the original amount of
$916.00. N.T., 12/30/15, at 42-43. Accordingly, Appellant was sentenced
to restitution in the amount of $886.00. Id.; Order, 12/30/15, at 1.
Appellant filed a motion to vacate the order of restitution, which the
trial court denied by order entered January 8, 2016. Appellant filed a notice
of appeal on January 29, 2016.3 The trial court ordered the filing of a
Pa.R.A.P. 1925(b) statement. Appellant’s counsel filed a statement of intent
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3
Appellant’s notice of appeal was filed within thirty days of the restitution
sentence imposed on December 30, 2015. This Court has held timely those
appeals filed within thirty days of a modified restitution order. See
Commonwealth v. Wozniakowski, 860 A.2d 539, 543 (Pa. Super. 2004)
(a notice of appeal filed within thirty days from an order amending
restitution entered one and one-half years after judgment of sentence was
timely filed); see also Commonwealth v. Deshong, 850 A.2d 712, 713
n.1 (Pa. Super. 2004) (subsequent order regarding restitution finalized
judgment of sentence making appeal from subsequent order timely filed).
Furthermore, to the extent there is a challenge to the imposition of
Appellant’s sentence of restitution, as will be discussed, “the illegality of a
sentence is not a waivable matter and may be considered by the appellate
courts of the Commonwealth sua sponte.” Commonwealth v. Opperman,
780 A.2d 714, 717 (Pa. Super. 2001); see also Commonwealth v.
Gentry, 101 A.3d 813, 816 (Pa. Super. 2014) (“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.”); Commonwealth v.
Dinoia, 801 A.2d 1254, 1256 (Pa. Super. 2002) (“inquiry into the legality of
sentence is a non-waivable issue.”); Commonwealth v. Stradley, 50 A.3d
769, 771-772 (Pa. Super. 2012) (stating that because “[the appellant’s]
claim on appeal challenges the legality of his sentence, its review is not
abrogated by the entry of his guilty plea.”).
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to file an Anders/McClendon brief in lieu of a Pa.R.A.P. 1925(b) statement.
See Pa.R.A.P. 1925(c)(4) (“In a criminal case, counsel may file of record
and serve on the judge a statement of intent to file an Anders/McClendon
brief in lieu of filing a Statement.”). The trial court entered an order on
March 2, 2016, indicating that because Appellant’s counsel filed a statement
indicating her intent to file an Anders/McClendon brief, it was not filing an
opinion “pursuant to 210 Pa.Code § 1925(a)” in this matter. Order, 3/2/16,
at 1.
Before we address the question raised on appeal, we first must resolve
appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83
A.3d 1030, 1032 (Pa. Super. 2013) (en banc). There are procedural and
briefing requirements imposed upon an attorney who seeks to withdraw on
appeal. The procedural mandates are that counsel must:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the brief to the defendant; and 3) advise the defendant that
he or she has the right to retain private counsel or raise
additional arguments that the defendant deems worthy of the
court’s attention.
Id. at 1032 (citation omitted).
In this case, counsel has satisfied those directives. Within her petition
to withdraw, counsel averred that she conducted a conscientious review of
the record, including the guilty plea, sentencing, and restitution transcripts.
Following that review, counsel concluded that the present appeal is wholly
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frivolous. Counsel sent Appellant a copy of the Anders brief and petition to
withdraw, as well as a letter, a copy of which is attached to the petition. In
the letter, counsel advised Appellant that she could represent herself or that
she could retain private counsel to represent her.
We now examine whether the brief satisfies the Supreme Court’s
dictates in Santiago, which provide that:
in the Anders brief that accompanies court-appointed counsel’s
petition to withdraw, counsel must: (1) provide a summary of
the procedural history and facts, with citations to the record; (2)
refer to anything in the record that counsel believes arguably
supports the appeal; (3) set forth counsel’s conclusion that the
appeal is frivolous; and (4) state counsel’s reasons for
concluding that the appeal is frivolous. Counsel should articulate
the relevant facts of record, controlling case law, and/or statutes
on point that have led to the conclusion that the appeal is
frivolous.
Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).
Counsel’s brief is compliant with Santiago. It sets forth the factual
and procedural history of this case, outlines pertinent case authority, cites to
the record, and refers to an issue of arguable merit.4 Anders Brief at 8.
Further, the brief sets forth counsel’s conclusion that the appeal is frivolous
and the reasons for counsel’s conclusion.
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4
We note that although counsel does not identify any issues of arguable
merit in the “Statement of Questions Presented” section of the Anders brief,
she does so in the argument section entitled, “ANALYSIS OF ARGUABLE
APPELLATE ISSUES.” Anders Brief at 8.
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The sole issue raised in the Anders brief is that Appellant was not
responsible for any restitution to the victim as her state of intoxication did
not cause the accident and the resulting personal property damage. Anders
Brief at 8. Rather, Appellant asserts that a defect in Appellant’s car,
specifically the failure of the rack and pinion steering, was the cause of the
accident. Id.
In the context of criminal proceedings, it is well-settled that “an order
of ‘restitution is not simply an award of damages, but, rather, a sentence.’”
Commonwealth v. Atanasio, 997 A.2d 1181, 1182–1183 (Pa. Super.
2010). “An appeal from an order of restitution based upon a claim that a
restitution order is unsupported by the record challenges the legality, rather
than the discretionary aspects, of sentencing.” Id. at 1183. “When we
address the legality of a sentence, our standard of review is plenary and is
limited to determining whether the trial court erred as a matter of law.”
Commonwealth v. Pombo, 26 A.3d 1155, 1157 (Pa. Super. 2011).
A trial court’s authority to order restitution is established in 18 Pa.C.S.
§ 1106, which provides in pertinent part:
§ 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.
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* * *
(c) Mandatory restitution.--
(1) The court shall order full restitution:
* * *
(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:
* * *
(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.
***
(h) Definitions. -- As used in this section, the following words
and phrases shall have the meanings given to them in this
subsection:
* * *
“Injury to property.” Loss of real or personal property,
including negotiable instruments, or decrease in its value,
directly resulting from the crime.
* * *
“Property.” Any real or personal property, including
currency and negotiable instruments, of the victim.
* * *
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“Restitution.” The return of the property of the victim or
payments in cash or the equivalent thereof pursuant to an
order of the court.
18 Pa.C.S. § 1106(a), (c), (h).
An order of restitution is a sentence, and thus, the amount
awarded is within the sound discretion of the trial court and must
be supported by the record. Restitution may be imposed only
for those crimes to property or person where the victim suffered
a loss that flows from the conduct that forms the basis of the
crime for which the defendant is convicted. A sentence of
restitution is designed to impress upon the offender the loss he
has caused and his responsibility to repair that loss as far as it is
possible to do so. The sum may not be speculative or excessive.
Commonwealth v. Boone, 862 A.2d 639, 643 (Pa. Super. 2004) (internal
citations and quotation marks omitted). “When restitution is imposed as
part of the defendant’s sentence, a direct causal connection between the
damage to person or property and the crime must exist.” Commonwealth
v. Nuse, 976 A.2d 1191, 1193 (Pa. Super. 2009).
At the restitution hearing held on December 30, 2015, the victim
testified to the facts of the accident and his purported related injuries. N.T.,
12/30/15, at 3-34. The victim testified that during the course of the
accident, his eyeglasses were broken. Id. at 6-8. The Commonwealth
presented, and the victim identified, a receipt that reflected the cost of his
replacement glasses in the amount of $916.00 and the fact that he had
charged this amount to his Visa card. Id. at 12-13. The victim testified that
his glasses were expensive because they were trifocals, and he confirmed
that he had to pay out-of-pocket for the glasses. Id. at 9, 13, 26.
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Additionally, Cathy Payne, a restitution advocate from the Lancaster
County District Attorney’s office, testified. N.T., 12/30/15, 35-37.
Ms. Payne explained that the victim had no insurance coverage for
replacement of these eyeglasses, and as a result, he was forced to
personally pay for replacement of the glasses. Id. at 35.
Appellant conceded that at the time of the accident, she was driving
under the influence of alcohol. N.T., 10/28/15, at 7; N.T., 12/30/15, at 28,
40. As noted, however, Appellant argued that her intoxication did not cause
the accident, but instead, the failure of the rack and pinion steering in her
vehicle was the cause. N.T., 12/30/15, at 28-30. Despite Appellant’s claims
that the rack and pinion steering failure caused the accident, the trial court
noted that Appellant failed to present any evidence supporting that
conclusion at the hearing. Id. at 41-42. Moreover, although the victim’s
testimony was contradictory at times, the trial court found his testimony
credible and concluded, based on the testimony, that the victim’s glasses
were broken as a result of the accident and that Appellant was responsible
for the accident. Id. at 40-42. We may not reweigh that credibility
determination. See Commonwealth v. Gibson, 720 A.2d 473, 480 (Pa.
1998) (“Credibility determinations are strictly within the province of the
finder of fact; therefore, an appellate court may not reweigh the evidence
and substitute its judgment for that of the finder of fact.”).
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Thus, we cannot conclude that the trial court erred in finding that
Appellant was responsible for causing the accident and the resulting damage
to the victim’s personal property. Consequently, the trial court’s imposition
of a sentence of restitution for replacement of the victim’s broken eyeglasses
was not an error of law. Moreover, the amount of restitution was supported
by sufficient evidence of record. Accordingly, we agree with counsel that
this issue lacks merit.
We also have independently reviewed the record in order to determine
if counsel’s assessment about the frivolity of the present appeal is correct.
Anders; Santiago; Cartrette. We agree with counsel’s assessment, grant
her permission to withdraw, and affirm.
Petition of Diana C. Kelleher, Esquire, to withdraw as counsel, is
granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/13/2016
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