Com. v. Wissinger, B. ( 2020 )

J-A29037-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRANDON SCOTT WISSINGER :
:
Appellant : No. 789 WDA 2019
Appeal from the Judgment of Sentence Entered January 10, 2019
In the Court of Common Pleas of Butler County Criminal Division at
No(s): CP-10-CR-0000160-2018
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED JANUARY 2, 2020
Brandon Scott Wissinger (Wissinger) appeals from the judgment of
sentence imposed by the Court of Common Pleas of Butler County (trial court)
following his entry of a guilty plea to Receiving Stolen Property (RSP).1
Wissinger challenges the trial court’s restitution award. We vacate the
restitution award and remand for resentencing.
This case stems from the brutal robbery of 73-year old Robert Patterson
(Patterson) in his home. On December 2, 2017, at approximately 6:22 a.m.,
Patterson answered his door when his doorbell rang, expecting to see a family
member. Instead, Wissinger’s cohorts, Michael Karch (Karch) and David
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 3925(a).
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Boggs (Boggs), forced their way into the home, while Wissinger and Janet
Greiner waited outside in a truck. Karch and Boggs hit Patterson over the
head twice with a gun and beat him for 50 minutes before tying him up. They
then took a number of items from the home and fled in the truck.
Wissinger was charged with five counts of conspiracy (to commit
burglary, robbery, theft, aggravated assault and simple assault) and one
count of RSP. On December 6, 2018, he entered a guilty plea to the RSP
offense only that involved the receipt of 12 firearms belonging to Patterson.
The Commonwealth dismissed the conspiracy charges. On January 10, 2019,
the trial court sentenced Wissinger to a term of not less than 27 nor more
than 54 months of imprisonment. The court also ordered Wissinger to pay
Patterson, jointly and severally with his co-defendants, restitution the amount
of $15,779.00 though later amended to $15,429.00.2 Wissinger timely
appealed and he and the trial court complied with Rule 1925. See Pa.R.A.P.
1925(a)-(b).
On appeal, Wissinger argues that the restitution award was improperly
calculated because the amount imposed was not a direct result of the crime
to which he pled guilty. He contends that, at most, the record supports
restitution in the amount attributable to the firearms only.
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2 The court also ordered Wissinger to pay $4,774.80 to the Victim
Compensation Assistance Program. Defense counsel did not contest this
assessment.
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“Initially, we note that when a defendant enters a guilty plea, he or she
waives all defects and defenses except those concerning the validity of the
plea, the jurisdiction of the trial court, and the legality of the sentence
imposed.” Commonwealth v. Stradley, 50 A.3d 769, 771-72 (Pa. Super.
2012) (citation omitted). “In the context of criminal proceedings, an order of
restitution is not simply an award of damages, but, rather, a sentence.” Id.(citation omitted). An appeal from an order of restitution based on a claim
that a restitution order is unsupported by the record challenges the legality of
the sentence. See id. The determination as to whether the trial court
imposed an illegal sentence is a question of law, and our standard of review
is plenary. See id. Additionally, a restitution award must be strictly
scrutinized because its purpose is primarily punitive. See Commonwealth
v. Hunt, 2019 WL 4783495, at *4 (Pa. Super. filed Oct. 1, 2019).
Section 1106 of the Crimes Code, governing restitution for injuries to
person or property, provides in relevant part as follows:
(a) General rule.—Upon conviction for any crime wherein:
(1) property of a victim has been stolen, converted or
otherwise unlawfully obtained, or its value substantially decreased
as a direct result of the crime; or
(2) the victim, if an individual, 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:
(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.
18 Pa.C.S. § 1106(a)(1)-(2); (c)(1), (2)(i).
“[R]estitution is proper only if there is a direct causal connection
between the crime and the loss.” Commonwealth v. Lekka, 210 A.3d 343,
358 (Pa. Super. 2019) (citation omitted). “Because restitution is a sentence,
the amount ordered must be supported by the record, and may not be
speculative.” Id. (citation omitted). “In addition, the amount of restitution
awarded must be determined under the adversarial system with
considerations of due process.” Id. (citation omitted). Due process concerns
are implicated when the losses for which restitution has been imposed did not
arise from the action for which the defendant has been held criminally
accountable. See Commonwealth v. Cooper, 466 A.2d 195, 197 (Pa Super.
1983).
“[A]ny restitution ordered must flow from only those crimes for which a
defendant is convicted, and not any underlying, unproven, conduct.”
Commonwealth v. Zrncic, 167 A.3d 149, 152 (Pa. Super. 2017) (citation
omitted; emphasis added). “Section 1106 requires a ‘direct nexus’ between
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the loss claimed and the crime for which Appellant was convicted[.]” Id.
at 153 (citation omitted; emphasis in original). “In a case of theft by receiving
stolen property, a reviewing court will not countenance a sentence provision
which requires restitution for property which the Commonwealth has not
proven was either stolen or received by the [defendant].” Commonwealth
v. Reed, 543 A.2d 587, 589 (Pa. Super. 1988) (citation omitted).
As previously noted, Wissinger pled guilty to RSP of a number of
firearms. (See Plea Agreement, 12/06/18; Information, 3/02/18, at Count
4). At the restitution hearing, Patterson explained that he has been collecting
firearms since about 1960, and that he owns pistols, rifles and shotguns. (See
N.T. Hearing, 4/10/19, at 23). He described for the court, to the best of his
ability, each firearm that was missing and the amount that he paid for it or its
value. (See id. at 15). Patterson further testified that his loss attributable to
the stolen guns was $7,000.00. (See N.T. Hearing, 4/10/19, at 14-24; see
also Trial Court Opinion, 4/23/19, at 1-2).3
Because Wissinger pled guilty only to the RSP charge and not on any of
the dismissed conspiracy charges, the record does not support the restitution
ordered of $15,429.00. However, through Patterson’s testimony, there is
sufficient evidence to support an award of $7,000.00 for the loss of the guns.
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3There is some discrepancy in the record as to whether 12 or 13 firearms
were taken. However, Patterson testified that his loss related to the guns was
$7,000.00.
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Accordingly, we vacate the restitution order awarding $15,429.00 to Patterson
and remand to the trial court for entry of an Amended Order awarding
restitution in the amount of $7,000.00.
Restitution order vacated. All other aspects of Judgment of Sentence
affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/2/2020
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