Com. v. Martin, J. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JERMAINE L. MARTIN
Appellant No. 1362 MDA 2019
Appeal from the Judgment of Sentence Entered May 3, 2019
In the Court of Common Pleas of Berks County
Criminal Division at No: CP-06-CR-0001842-2016
BEFORE: STABILE, J., DUBOW, J., and PELLEGRINI, J.*
MEMORANDUM BY STABILE, J.: FILED JULY 13, 2020
Appellant, Jermaine L. Martin, appeals from the May 3, 2019 judgment
of sentence imposing seven years of probation and $2,182.00 in restitution to
Hertz Corporation (“Hertz”) for theft of leased property.1 We affirm.
Appellant pled guilty to the aforementioned offense at a May 3, 2019
guilty plea colloquy and sentencing. He admitted he rented a 2015 Chevrolet
Cruze from Hertz and never returned it. Police eventually recovered the
vehicle for Hertz. The trial court accepted the plea and imposed sentence as
set forth above. At that same proceeding, the trial court imposed sentence at
docket number 442 of 2016 (“Number 442”), which is presently on appeal in
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 3932(a).
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a companion case at 1361 MDA 2019. At Number 442, the trial court imposed
restitution of $48,789.76 the Wilson Junior Soccer Club (“WJSC”). In the
instant matter, the trial court directed that the WJSC receive priority over
Hertz in receiving restitution payments. The trial court denied Appellant’s
timely post-sentence motion, and this timely appeal followed.
Appellant presents two questions for our review:
1. Whether the trial court imposed an illegal sentence when it
imposed restitution from an unrelated criminal docket in the
instant matter?
2. Whether the trial court erred by imposing a sentence of
seven (7) years probation consecutive to the sentence imposed in
[Number 442], when the aforementioned docket has no nexus to
the instant docket and when the Commonwealth recommended,
and [Appellant] requested, a concurrent sentence.
Appellant’s Brief at 8.
The first issue need not detain us long. Appellant asserts, correctly, that
an order of restitution must flow directly from damages in the case. The
Pennsylvania Crimes Code provides 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.
18 Pa.C.S.A. § 1106(a); see also, Commonwealth v. Harner, 617 A.2d 702705 (Pa. 1992) (“holding that § 1106 is applicable only upon conviction for a
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crime wherein property has been stolen, converted, unlawfully obtained or its
value substantially decreased, or where the victim suffers personal injury
directly resulting from a crime.”). Furthermore, § 1106(c) provides that the
trial court “shall” set priority of payment when it orders restitution to more
than one victim at a time. 18 Pa.C.S.A. § 1106(c).
Imposition of restitution without statutory authority implicates the
legality of a sentence. Commonwealth v. Ramos, 197 A.3d 766, 768 (Pa.
Super. 2018). Instantly, the trial court acted exactly in accord with § 1106.
Appellant admitted that he leased a car from Hertz and did not return it, and
he admitted that Hertz suffered $2182.00 in damages. The trial court ordered
restitution in that amount. Contrary to Appellant’s argument, the trial court
did not impose restitution from an unrelated matter (i.e. Number 442). The
trial court referenced Number 442 because it was statutorily required to
address priority of payment under § 1106. Thus, the fact that the trial court
ordered the WJSC to receive priority of payment over Hertz does not render
the sentence illegal.
In his second argument, Appellant claims the trial court abused its
sentencing discretion in imposing a seven-year probation term to run
consecutive to the sentence at Number 442. In order to preserve a challenge
to the trial court’s sentencing discretion, an appellant must (1) file a timely
post-sentence motion; (2) file a timely notice of appeal; (3) include in his
appellate brief at concise statement of the reasons relied upon for allowance
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of appeal pursuant to Pa.R.A.P. 2119(f); and (4) present a substantial
question for review. Commonwealth v. Glass, 50 A.3d 720, 726 (Pa. Super.
2012), appeal denied, 63 A.3d 774 (Pa. 2013). Appellant has complied with
the first three requirements. We therefore must determine whether Appellant
raises a substantial question. “A substantial question exists “only when the
appellant advances a colorable argument that the sentencing judge's actions
were either: (1) inconsistent with a specific provision of the Sentencing Code;
or (2) contrary to the fundamental norms which underlie the sentencing
process.” Id. at 727.
In his Pa.R.A.P. 2119(f) statement, Appellant claims his sentence in this
case was motivated by the facts of Number 442. That is, Appellant claims the
trial court based its sentence on conduct other than the conduct at issue in
this case. We conclude this argument raises a substantial question. We
therefore proceed to the merits.
Sentencing is a matter vested in the sound discretion of the
sentencing judge. The standard employed when reviewing the
discretionary aspects of sentencing is very narrow. We may
reverse only if the sentencing court abused its discretion or
committed an error of law. A sentence will not be disturbed on
appeal absent a manifest abuse of discretion. In this context, an
abuse of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law, exercised
its judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision. We must accord
the sentencing court's decision great weight because it was in the
best position to review the defendant's character, defiance or
indifference, and the overall effect and nature of the crime.
Commonwealth v. Cook, 941 A.2d 7, 11–12 (Pa. Super. 2007).
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In the argument section of his brief, Appellant claims the trial court
abused its discretion in considering the restitution Appellant owed at Number
442. That is, the trial court imposed seven years of probation here, but noted
that this sentence could be terminated without further petition to the trial
court if Appellant completed his restitution payments prior to the expiration of
his sentence at Number 442. N.T. Guilty Plea and Sentencing, 5/3/19, at 24.
We conclude that the record contradicts Appellant’s argument. The trial
court did not impose a more severe sentence based on the circumstances of
Number 442. Rather, the trial court made it possible for Appellant to serve
no sentence at all in this if he makes full restitution prior to the completion
of his sentence at 442. The court had discretion to run this sentence
consecutive to Number 441. Commonwealth v. Mouzon, 828 A.2d 1126,
1130 (Pa. 2003). Furthermore, the applicable standard guideline range called
for three to twelve months of incarceration. N.T. Guilty Plea and Sentencing,
5/3/19, at 10. Appellant identifies no basis upon which the trial court abused
its discretion in imposing a mitigated sentence to run consecutively to the
sentence at Number 442.
Based on the foregoing, we conclude that Appellant has not raised any
meritorious challenge to his sentence. We therefore affirm.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/13/2020
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