Com. v. Meadius, D. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 M. MEADIUS,
Appellant No. 1551 WDA 2013
Appeal from the Judgment of Sentence July 11, 2013
in the Court of Common Pleas of Allegheny County
Criminal Division at No.: CP-02-CR-0004482-2012
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED NOVEMBER 26, 2014
Appellant, David M. Meadius, appeals, nunc pro tunc, from the
judgment of sentence entered after his open guilty plea to driving while
operating privileges are suspended or revoked, operation of a motor vehicle
without required financial responsibility, and accidents involving death or
personal injury while not properly licensed.1 Specifically, Appellant argues
that the trial court erred in imposing restitution of $30,487.43 without
determining his financial ability to pay, rendering the sentence illegal. We
affirm.
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*
Retired Senior Judge assigned to the Superior Court.
1
75 Pa.C.S.A. §§ 1543(b)(1), 1786(f), and 3742.1(a), respectively.
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On January 17, 2013, Appellant entered an open guilty plea to the
charges resulting from a January 17, 2012 motor vehicle accident. On July
11, 2013, the sentencing court sentenced Appellant to sixty days in a county
intermediate punishment program, a probationary term of five years, and
restitution of $30,487.43 inter alia. (See Order of Sentence, 7/11/13;
Restitution Order, 1/17/13). Appellant timely appealed on September 27,
2013.2
Appellant raises the following question for our review:
Did the sentencing court below impose an illegal sentence upon
Appellant when it ordered him to pay over $30,000 in restitution
without first determining that he possessed the financial ability
to pay such an amount?
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2
Appellant wrote plea counsel several letters in August 2013 requesting that
he file an appeal. On August 29, 2013, counsel filed a motion to withdraw
as counsel and requested that the court appoint counsel to represent
Appellant in any post-sentencing matters. The court immediately granted
the motion, appointed the Allegheny County Public Defender’s Office as
Appellant’s counsel, and granted Appellant the right to appeal nunc pro tunc
within thirty days. (See Order, 8/29/13).
On September 18, 2013, Appellant filed a counseled motion requesting
the court to modify its August 29, 2013 order to characterize prior counsel’s
motion to withdraw as counsel as being both a motion to withdraw as
counsel and a petition for post-conviction collateral relief seeking
reinstatement of Appellant’s direct appeal rights. The court granted
Appellant’s motion on October 1, 2013, ordered him to file an appeal, and
granted him leave to proceed in forma pauperis. (See Order, 10/1/13).
On October 2, 2013, Appellant filed an amended appeal to correct his
middle initial from “R” to “M.” Pursuant to the court’s October 4, 2013
order, Appellant filed a Rule 1925(b) statement on October 9, 2013. The
court entered its Rule 1925(a) opinion on December 9, 2013. See Pa.R.A.P.
1925.
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(Appellant’s Brief, at 3).
Our standard of review is well-settled:
A claim that implicates the fundamental legal authority of
the court to impose a particular sentence constitutes a challenge
to the legality of the sentence. If no statutory authorization
exists for a particular sentence, that sentence is illegal and
subject to correction. An illegal sentence must be vacated.
When the legality of a sentence is at issue on appeal, our
standard of review is de novo and our scope of review is plenary.
Commonwealth v. Catt, 994 A.2d 1158, 1160 (Pa. Super. 2010) (citations
and quotation marks omitted).
Appellant claims that the sentence awarding over $30,000 in
restitution as a condition of his probation was illegal when the court did not
inquire into his financial ability to pay that amount. (See Appellant’s Brief at
9-13). We disagree.
The relevant portions of the statutes at issue are as follows:
(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:
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(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 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.
18 Pa.C.S.A. § 1106.
(a) General rule.—In imposing an order of probation the court
shall specify at the time of sentencing the length of any term
during which the defendant is to be supervised, which term may
not exceed the maximum term for which the defendant could be
confined, and the authority that shall conduct the supervision.
(b) Conditions generally.—The court shall attach such of the
reasonable conditions authorized by subsection (c) of this section
as it deems necessary to insure or assist the defendant in
leading a law-abiding life.
(c) Specific conditions.—The court may as a condition of its
order require the defendant:
* * *
(8) To make restitution of the fruits of his crime or to make
reparations, in an amount he can afford to pay, for the loss or
damage caused thereby.
42 Pa.C.S.A. § 9754.
Restitution is a creature of statute . . . [w]here that statutory
authority exists, however, the imposition of restitution is vested
within the sound discretion of the sentencing judge.
In the context of a criminal case, restitution may be
imposed either as a direct sentence . . . or as a condition of
probation. . . .
Commonwealth v. Kinnan, 71 A.3d 983, 986 (Pa. Super. 2013) (citations
omitted). However, “restitution must be determined at the time of
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sentencing if the restitution is imposed as a direct sentence.”
Commonwealth v. Deshong, 850 A.2d 712, 713 (Pa. Super. 2004).
Moreover, an appellant, “[h]aving agreed to pay restitution . . . cannot
now raise the question of his ability to pay.” Commonwealth v. Gardner,
632 A.2d 556, 557 (Pa. Super. 1993), appeal denied, 652 A.2d 835 (Pa.
1994).
During the guilty plea proceedings, the trial judge indicated, without
objection, “[a]nd then, the restitution amount has been agreed to, and I
have signed that order today, in the amount of $30,487.43, $29,587.43 to
AMCO insurance and $900 to [victim].” (N.T. Guilty Plea Hearing, 1/17/13,
at 23).
In his brief, Appellant argues that the $30,487.43 in restitution was a
probation sentence that required the court to inquire into his financial ability
to pay that amount under 42 Pa.C.S.A. § 9754(c)(8). (See Appellant’s Brief
at 9-13).
The record reflects that neither Appellant nor his counsel disputed the
imposition of restitution or the amount. (See N.T. Guilty Plea Hearing,
1/17/13, at 23; N.T. Sentencing Hearing, 7/11/13, at 13; Trial Court
Opinion, 12/09/13, at 2). Moreover, Appellant did not “make any argument
regarding his ability to pay the restitution amount agreed upon” at either
hearing. (Trial Ct. Op., at 7). However, Appellant admits that he “was
aware that the judge was going to order that amount paid as restitution . . .
not that he agreed to pay it or that he could pay it.” (See Appellant’s Brief
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at 12, n.2). Therefore, we conclude that Appellant has waived the claim of
his ability to pay the restitution amount. See Gardner, supra at 557.
Moreover, the record reflects that the restitution was a part of the
direct sentence. (See Order of Sentence, 7/11/13; Restitution Order,
1/17/13). The court sentenced Appellant to pay the full amount of
restitution both to the insurance company in the amount it previously
compensated the victim and to the victim for the balance of her loss. See
18 Pa.C.S.A. § 1106(c)(1)(i).
Based upon our review of the record, we conclude that although
somewhat ambiguous,3 the trial court intended it to be a direct sentence of
restitution, and the court was, for this reason as well, not required to
determine Appellant’s financial ability to pay. See id. Appellant’s issue
lacks merit.
Therefore, the court properly sentenced Appellant to pay $30,487.43
in full restitution to the victim and the insurance company, and making
complete compliance with that direct sentence a condition of his early
release from probation. See 18 Pa.C.S.A. § 1106(b). Accordingly, Appellant
received a legal sentence. See Catt, supra at 1160.
Judgment of sentence affirmed.
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3
The Commonwealth concedes that the record is ambiguous. (See
Commonwealth’s Brief, at 9).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/26/2014
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