Com. v. Conrad, K. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KEITH CONRAD,
Appellant No. 1659 WDA 2014
Appeal from the Judgment of Sentence of May 20, 2014
In the Court of Common Pleas of Clearfield County
Criminal Division at No(s): CP-17-CR-0000853-2013
BEFORE: SHOGAN, OLSON AND MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED JUNE 9, 2015
Appellant, Keith Conrad, appeals from the judgment of sentence
entered on May 20, 2014, following his jury trial conviction for theft by
failure to make required disposition of funds received.1 We remand for the
trial court to file an opinion pursuant to Pa.R.A.P. 1925(a).
We briefly summarize the facts and procedural history of this case as
follows. Appellant is a home improvement contractor. Ronald Ferry hired
Appellant to install, inter alia, a geothermal heating system at Mr. Ferry’s
residence. The Commonwealth charged Appellant with the aforementioned
crime, as well as deceptive or fraudulent business practices2 when Appellant
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1
18 Pa.C.S.A. § 3927.
2
18 Pa.C.S.A. § 4107.
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purportedly accepted payment and did not complete services. On April 9,
2014, a jury convicted Appellant of theft by failure to make required
disposition of funds and acquitted him of deceptive or fraudulent business
practices. On May 20, 2014, the trial court sentenced Appellant to six
months to one year of incarceration, followed by two years of probation.
The trial court also ordered Appellant to pay $22,686.84 to Boyer
Refrigeration and $4,806.20 to Mr. Ferry as restitution. This timely appeal
resulted.3
Appellant presents the following issues for our consideration:
I & II. Whether the trial court erred by misapplying the
sentencing guidelines when it assigned an offense
gravity score of (6) and used the same in
calculating the guideline sentence, where the
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3
Appellant filed post-sentence motions on May 29, 2014. The trial court
held a hearing on Appellant’s post-sentence motions on June 5, 2014. The
trial court issued an order and opinion on August 26, 2014, denying counts V
and VII of Appellant’s post-sentence motion. As discussed infra, counts V
and VII of Appellant’s post-sentence motion dealt with issues pertaining to
alleged recusal. On September 25, 2014, Appellant filed a notice of appeal.
On September 26, 2014, Appellant’s post-sentence motions were denied by
operation of law. Although the notice of appeal was premature, because the
trial court had not ruled on the post-sentence motions in their entirety, the
appeal was perfected once the remaining counts were denied by operation of
law. See Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the
announcement of a determination but before the entry of an appealable
order shall be treated as filed after such entry and on the day thereof.”). On
September 26, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925.
Appellant timely complied. On November 17, 2014, the trial court advised
this Court that it would rely on its August 26, 2014 opinion regarding the
issues presented on appeal.
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offense involved a monetary value of less than
$25,000[.00].
III. Whether the lower court erred by issuing an order
of restitution in the amount of $4,806.20 to
Ronald Ferry, where the restitution related to the
charge of deceptive business practices for which
[Appellant] was acquitted by a jury.
IV. Whether the lower court erred in sustaining the
verdict of guilty where the Commonwealth failed
to present sufficient evidence at trial to support a
jury finding that [Appellant] obtained the relevant
property “upon agreement, or subject to a known
legal obligation, to make specified payments or
other disposition.”
Appellant’s Brief at 5 (complete capitalization and suggested answers
omitted).
In Appellant’s first three issues, he claims that the trial court
misapplied the sentencing guidelines when it assigned an inappropriate,
higher offense gravity score in fashioning Appellant’s sentence on his
conviction for theft by failure to make required disposition. Id. at 8. More
specifically, Appellant argues that since he was acquitted of deceptive
business practices, the trial court erred in ordering restitution in the amount
of $4,806.20 to Mr. Ferry. Id. at 9. Appellant argues that his conviction for
theft by failure to make the required disposition of funds supported only the
$22,686.84 restitution award to Boyer Refrigeration. Thus, he contends:
Theft by failure to make required disposition of funds is
subcategorized within the sentencing guidelines according
to the monetary value involved in the offense. Where the
offense involved a monetary value amount between
$2,000[.00] and $25,000[.00], the appropriate offense
gravity score is five (5). Where the offense involved a
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monetary amount between $25,000[.00] and
$100,000[.00], the appropriate offense gravity score is six
(6). Here, the offense for which [Appellant] was convicted
involved a monetary amount of $22,686.84, making the
appropriate offense gravity score five (5).
Furthermore, due to the miscalculation of the offense
gravity score, [Appellant] was sentenced according to an
inaccurate standard range. The standard range for an
offense gravity score of five (5) and a prior record score of
zero (0) is RS (restorative sanctions) to nine (9) months of
incarceration. However, the standard range for an offense
gravity score of six (6) and a prior record score of zero (0)
increases to three (3) to twelve (12) months of
incarceration. Although [Appellant’s] minimum term of
incarceration of six (6) months could have been imposed
under either standard range, that does not prevent
[Appellant] from raising the present challenge to the
misapplication of the sentencing guidelines.
Id. at 15 (some capitalization omitted).
In sum, in his first three issues on appeal, Appellant avers that the
trial court erred by ordering restitution on the acquitted charge of deceptive
business practices. Appellant argues that this error, in turn, improperly
inflated the monetary value of Appellant’s conviction under the sentencing
guidelines and affected the offense gravity score used by the trial court to
determine the applicable guideline range for theft by failure to make
required disposition of funds received. In his fourth issue presented,
Appellant contends that the Commonwealth did not present sufficient
evidence to support his conviction for theft by failure to make required
disposition of funds received. Id. at 26-31.
Here, the trial court did not address any of these issues despite the
fact that Appellant raised all of them in both his post-sentence motions and
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his concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). We have previously determined:
In order to conduct a thorough and proper review on
appeal, an opinion explaining the reasoning behind the trial
court's decisions is advantageous. The absence of a trial
court opinion poses a substantial impediment to meaningful
and effective appellate review. Rule 1925 is intended to aid
trial judges in identifying and focusing upon those issues
that the parties plan to raise on appeal. Rule 1925 is thus a
crucial component of appellate process. Rule 1925 directs
the trial courts to provide an opinion as to the issues the
appellant will raise[].
Commonwealth v. McBride, 957 A.2d 752, 758 (Pa. Super. 2008)
(citations and quotations omitted).
In this case, the trial court filed an opinion on August 26, 2014. Upon
review of that decision, the trial court only addressed claims pertaining to
alleged impartial comments made by a different judge during a civil hearing
regarding potential criminal liability in this matter. Trial Court Opinion,
8/26/2014, at 2-3. The trial court determined that the alleged failure to
recuse was cured by the subsequent jury trial. Id. at 3-4. Unfortunately,
the trial court did not address the issues Appellant currently raises on
appeal. Instead, on November 17, 2014, this Court received a letter from
the trial court indicating that it was relying on its August 26, 2014 opinion in
response to Appellant’s Rule 1925(b) statement. However, because the
August 26, 2014 opinion did not examine the issues we are presently
reviewing, we are constrained to remand this matter for the preparation of a
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Rule 1925(a) opinion that addresses all of the issues raised in Appellant’s
Rule 1925(b) concise statement.
Case remanded for the preparation of an opinion pursuant to Pa.R.A.P.
1925(a). Jurisdiction retained.
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