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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DAVID ANDREW WALES,
Appellant No. 2246 MDA 2015
Appeal from the Judgment of Sentence November 25, 2015
in the Court of Common Pleas of Bradford County
Criminal Division at No.: CP-08-CR-0000222-2015
BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED DECEMBER 12, 2016
Appellant, David Andrew Wales, appeals from his judgment of
sentence, following his counseled, negotiated guilty plea to one count of
criminal trespass. Specifically, he challenges the amount of an order of
restitution. We affirm.
Without permission, Appellant and his accomplice entered the Valley
Stockyards, an inactive warehouse formerly used for cattle auctions, which
was still equipped for operation but not open for business. Tom Hosking, the
owner (and former operator) had put it up for sale.1 The two trespassers
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*
Retired Senior Judge assigned to the Superior Court.
1
Mr. Hosking testified that he sold the property a few weeks before the
restitution hearing. (See N.T. Restitution Hearing, 11/25/15, at 2.). He
(Footnote Continued Next Page)
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proceeded to cause extensive damage to the exterior and interior of the
building as well as its contents. (See Trial Ct. Op., 4/20/16, at 1; see also
N.T. Restitution Hearing, at 3-4). Mr. Hosking testified that every window
but one was smashed, the restaurant and coolers were smashed, pots and
pans were broken, fluorescent lights were torn down and ripped out, etc. He
described the overall nature of the damage as “devastating.” (N.T.
Restitution Hearing, at 3).
Police tracked the vandals through footprints in the snow, and
apprehended them at the home of the accomplice. (See Trial Ct. Op., at 1).
Appellant was charged with three counts of burglary, three counts of
criminal trespass, three counts of criminal conspiracy, and criminal mischief.
(See id.).
However, Appellant entered a negotiated plea to one count of criminal
trespass, and agreed to pay restitution. (See id.; see also N.T.
Sentencing, 10/15/15, at 5). In exchange, the trial court dismissed all the
remaining charges, as agreed to by the Commonwealth, and imposed the
recommended sentence of eighteen months’ probation. (See N.T.
Sentencing, at 8). Notably, the sentencing court had the benefit of a pre-
sentence investigation report (PSI). (See id. at 1).
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(Footnote Continued)
elected not to engage in a complete repair of the building, and wound up
accepting a sale price approximately $75,000.00 less than his asking price,
before the damage was done. (See Trial Court Opinion, 4/20/16, at 3).
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Even so, counsel for Appellant challenged the amount of damages,
approximately forty-five thousand dollars, and requested a restitution
hearing, which the court granted.
After the hearing on November 25, 2015, the court imposed an order
of restitution for $44,330.00, jointly and severally on Appellant and his co-
defendant. (See Trial Ct. Op., at 3; see also N.T. Restitution Hearing, at
37). The total amount included $19,875.00 in reimbursement to the victim’s
insurer and $24,455.00 directly to the victim, Mr. Hosking. The trial court
reduced the total by $750.00 on evidence that three computer monitors
valued at two hundred and fifty dollars each were six to nine years old and,
inferentially, substantially reduced in value.2 (See N.T. Restitution Hearing,
at 24, 36-37).
Appellant timely appealed and, after an extension, filed a court-
ordered statement of errors, on February 17, 2016. See Pa.R.A.P. 1925(b).
The trial court filed an opinion on April 20, 2016. See Pa.R.A.P. 1925(a).
Appellant presents two questions for our review:
I. Did the trial court err by imposing an amount of
restitution which was far in excess of the criminal conduct of
[Appellant] and in an amount not supported by the evidence?
II. Does the order of restitution fail to consider the
Appellant’s limited mental abilities and earning ability?
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2
Otherwise, the court does not specifically discuss, and the parties do not
argue, any distinctions in damages based on original cost of acquisition,
depreciation, or replacement value.
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(Appellant’s Brief, at 4) (unnecessary capitalization omitted).
Challenges to the appropriateness of a sentence of restitution
are generally considered challenges to the legality of the
sentence. The legality of a sentence is an issue that cannot be
waived. . . .
In evaluating a trial court’s application of a statute, our
standard of review is plenary and is limited to determining
whether the trial court committed an error of law.
Mandatory restitution is statutorily grounded in two
provisions, 42 Pa.Con.Stat.Ann. § 9721(c) and 18
Pa.Con.Stat.Ann. § 1106(a).
The Sentencing Code, 42 Pa.Con.Stat.Ann. § 9721(c)
provides that the court shall order the defendant to
compensate the victim of his criminal conduct for the
damage or injury that he sustained. 42 Pa.C.S.A.
§ 9721(c). The ordering of restitution is further defined by
18 Pa.Con.Stat.Ann. § 1106(a). Section § 1106(a) sets
forth the general rule that upon conviction for any
crime 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 therefore. 18 Pa.Con.Stat.Ann.
§ 1106(a)[.]
Commonwealth v. Langston, 904 A.2d 917, 922 (Pa. Super. 2006) (case
citations, internal quotation marks, and footnote omitted) (emphasis in
original).3
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3
We are mindful that controlling authority provides that restitution is to be
determined at the time of sentencing. See 18 Pa.C.S.A. § 1106 (c)(2); see
also Commonwealth v. Dinoia, 801 A.2d 1254, 1256 (Pa. Super. 2002).
It is the responsibility of the district attorney to make a recommendation to
the court at or prior to the time of sentencing as to the amount of restitution
to be ordered. See 18 Pa.C.S.A. § 1106 (c)(4)(i). Here, the record is silent
(Footnote Continued Next Page)
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In his first claim, Appellant challenges the order of restitution as
excessive and not supported by the evidence. (See Appellant’s Brief, at 4).
Appellant argues chiefly that the stockyard building had experienced prior
break-ins. (See id. at 7-9). He characterizes the victim’s testimony
concerning the value of the property as “self-serving” and speculates that an
unspecified amount of the damages may have been caused by previous
trespassers. (Id. at 8; see also id. at 8-9).
However, this argument overlooks Appellant’s own guilty plea, and Mr.
Hosking’s testimony that his presentation of damages was limited to the
period between his last previous visit to the premises, about a week or two
earlier, and the time of the break-in by Appellant and his co-conspirator. It
bears noting that the trial court found Mr. Hosking’s testimony credible.
(See Trial Ct. Op., at 3, 5). We defer to the credibility determinations of the
trial court as fact finder. See Commonwealth v. O'Bryon, 820 A.2d 1287,
1290 (Pa. Super. 2003) (citation omitted).
Furthermore, at the sentencing hearing, where he received the benefit
of a favorable negotiated plea, Appellant accepted full responsibility for his
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(Footnote Continued)
on any delay in notice of the Commonwealth’s recommendation of
restitution. However, we discern no prejudice in the brief delay for a
restitution hearing, which the record confirms was requested by counsel for
Appellant. Accordingly, we give the parties the benefit of the doubt, and will
review Appellant’s issues on the merits.
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actions, without qualification. (See N.T. Sentencing, at 5) (“I’d like to get a
job to pay off all the damages”). However, at the restitution hearing,
counsel for Appellant went to great lengths to deny substantial responsibility
for damages on his behalf. She argued:
[Appellant] isn’t trying to dispute [sic] that he’s completely in
the clear on this. What we do dispute is the vast amount of
damage attempting [sic] to be attributed to [Appellant]. This is
a building that . . . was already in disrepair. . . . [S]uddenly
every little thing that’s wrong with this old building . . . is
attributable to [Appellant].
(N.T. Restitution Hearing, at 33-34).
Appellant’s acceptance of full responsibility at the guilty plea hearing
when it was to his strategic benefit, followed by his generic renunciation,
through counsel, of that responsibility later at the restitution hearing is
unpersuasive, and fails to meet his burden of proving the amount of
restitution was not supported by the evidence.
On independent review, we discern no error of law in the sentencing
court’s determination of restitution. Mr. Hosking testified to the damages in
detail, supported by an appraisal and a written estimate for repair and clean-
up. (See N.T. Restitution Hearing, at 2-10). Defense counsel cross–
examined him at length. (See id. at 10-30). Defense counsel’s argument
essentially addressed the scope of the damages (blaming prior trespassers,
and implicitly, his accomplice). (See id.). Except for the obsolete computer
equipment, counsel did not challenge specific amounts.
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The trial court found nothing in the record to support Appellant’s
argument. (See Trial Ct. Op., at 5). We agree. Appellant’s argument is
speculative and unsupported by the record. (See N.T. Restitution Hearing,
at 33-35; see also Appellant’s Brief, at 7-9). His first claim does not merit
relief.
In his second issue, Appellant claims that the trial court failed to
consider his limited mental abilities and earning capacity. (See Appellant’s
Brief, at 4). He argues that the PSI notes he suffers from cerebral palsy,
ADHD, and an unspecified intellectual disability. (See id. at 9).
Preliminarily, we note that the identification of these conditions in the PSI is
based solely on Appellant’s self-reporting. Appellant offers no independent
medical diagnosis or other corroboration of his claims. Even more
importantly,
where the sentencing judge had the benefit of a presentence
investigation report, it will be presumed that he or she was
aware of the relevant information regarding the defendant's
character and weighed those considerations along with
mitigating statutory factors. . . . The sentencing judge can
satisfy the requirement that reasons for imposing sentence be
placed on the record by indicating that he or she has been
informed by the pre-sentencing report; thus properly considering
and weighing all relevant factors.
Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009),
appeal denied, 987 A.2d 161 (Pa. 2009) (citations omitted). Accordingly,
under well-settled authority, Appellant’s claim of insufficient consideration of
his alleged mental and physiological infirmities fails to overcome the
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presumption that the sentencing court properly weighed all relevant factors
identified in the PSI.4
Appellant also argues that the trial court did not consider his “earning
ability.” (Appellant’s Brief at 4, 9-10). The trial court correctly found this
claim waived and properly disregarded this factor. When a court orders
restitution, it must do so “[r]egardless of the current financial resources of
the defendant, so as to provide the victim with the fullest compensation for
the loss.” 18 Pa.C.S.A. § 1106(c)(1)(i). Evidence about Appellant’s ability
to pay restitution thus has no bearing on the final amount of restitution
ordered. See Commonwealth v. Rush, 909 A.2d 805, 811 (Pa. Super.
2006) (citing Commonwealth v. Marshall Colon, 708 A.2d 1279, 1282
(Pa. Super. 1998)) (“the court need not consider the defendant’s ability to
pay at the time of imposing restitution, and the defendant's ability to pay
need only be considered upon default.”).
His second claim is waived and would not merit relief.
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4
Appellant has failed to include the PSI in the certified record. Inclusion in
the reproduced record does not remedy this deficit. See Commonwealth
v. Preston, 904 A.2d 1, 6 (Pa. Super. 2006), appeal denied, 916 A.2d 632
(Pa. 2007). Nevertheless, there is no dispute, and the certified record
confirms, that the sentencing court had the benefit of a PSI. Therefore, it is
unnecessary for us to address the procedural defects of Appellant’s reference
to the PSI, and we decline to do so. When the record confirms that the
sentencing court acknowledged possession of a PSI, it is still presumed to
have weighed all relevant factors.
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Our reasoning differs somewhat from that of the sentencing court.
However, we may affirm on any basis, so long as the result is legally correct.
See Lucas v. Lucas, 882 A.2d 523, 531 (Pa. Super. 2005).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2016
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