Com. v. Booze, M. ( 2021 )

J-A14029-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
MARCUS MICHAEL BOOZE :
:
Appellee : No. 1039 WDA 2020
Appeal from the Judgment of Sentence Entered October 3, 2019
In the Court of Common Pleas of Greene County
Criminal Division at No(s): CP-30-CR-0000302-2018
BEFORE: MURRAY, J., KING, J., and MUSMANNO, J.
MEMORANDUM BY KING, J.: FILED: September 29, 2021
Appellant, the Commonwealth of Pennsylvania, appeals from the
judgment of sentence entered in the Greene County Court of Common Pleas,
following the nolo contendere plea of Appellee, Marcus Michael Booze, to
simple assault.1 We affirm Appellee’s conviction but vacate and remand for
resentencing.
The trial court set forth the relevant facts of this case as follows:
On November 4, 2018, [Appellee], age 19 at the time,
entered the DubTown Vape Shop. [Appellee] was
accompanied by Louis Hunyady and Marissa Romanakis.
The three had entered the vape shop business to purchase
JUUL electronic cigarettes.
The [c]ourt recalls that there had been an ongoing feud
between the victim, Franklin D. Russell, II, and Louis
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1 18 Pa.C.S.A. § 2701(a)(2).
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Hunyady. The [c]ourt recalls also that this feud had been
fomenting as a result of online postings primarily by Russell.
Unknown to [Appellee] and his young friends, Russell was
inside the vape shop playing video games. When the three
individuals entered Russell immediately confronted
Hunyady. Quickly the verbal sniping rose to a physical
altercation and Russell began to pummel Hunyady with his
fists while holding him in a headlock. It should be noted
that Russell was much larger than Hunyady, and
significantly outweighed Hunyady. [Appellee] opened a
pocketknife and in an attempt to stop the attack, [Appellee]
stabbed Russell once in Russell’s lower back. This resulted
in a collapsed lung and hospitalization of Russell, the victim.
The next day, [Appellee] was arrested and charged with
Criminal Attempt-Homicide and Aggravated Assault. On
May 8, 2019, [Appellee] was tried before a jury on the
charges of Criminal Attempt-Murder and Aggravated Assault
with a Deadly Weapon arising out of the incident that
occurred on November 4, 2018. The jury acquitted
[Appellee] on the charge of Criminal Attempt-Homicide and
they were deadlocked as to the charge of Aggravated
Assault. The [c]ourt entered a verdict to the offense of
Criminal Attempt-Homicide and declared a mistrial on the
remaining charge of Aggravated Assault.
On August 13, 2019, the Commonwealth amended the
Aggravated Assault information to one of Simple Assault and
[Appellee] entered a plea of nolo contendere to the reduced
charge.
(Trial Court Opinion, filed January 28, 2020, at 3-5) (internal footnotes
omitted).
The court sentenced Appellee on October 3, 2019, to 30 days to 23½
months’ imprisonment.2 The court also sentenced Appellee to pay restitution
____________________________________________
2 The court later amended its sentencing order to clarify that Appellee entered
a plea of nolo contendere, where the original sentencing order had mistakenly
indicated that Appellee pled guilty.
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in the amount of $6,000.00 split evenly between the victim and the Victims
Compensation Assistance Program (“VCAP”). On October 11, 2019, the
Commonwealth timely filed a post-sentence motion, alleging that Appellee
owed $10,686.26 to VCAP, which it paid to the victim to cover his medical
treatment. The Commonwealth claimed, “to the extent the [c]ourt reduced
the restitution payable to [VCAP], the sentence imposed is illegal as it is in
direct contravention to 18 Pa.C.S.A. § 1106(c)(1)[.]” (Post–Sentence Motion,
filed 10/11/19, at unnumbered 2). On November 15, 2019, prior to the court’s
ruling on the post-sentence motion, the Commonwealth filed a notice of
appeal. This Court quashed the appeal as premature on June 25, 2020. On
September 2, 2020, the trial court denied the Commonwealth’s post-sentence
motion.
The Commonwealth timely filed a notice of appeal on September 28,
2020. On October 5, 2020, the court ordered the Commonwealth to file a
concise statement of errors complained of on appeal, pursuant to Pa.R.A.P.
1925(b). The Commonwealth timely filed a Rule 1925(b) statement on
October 15, 2020.
The Commonwealth raises the following issue for our review:
Did the court err in failing to include mandatory restitution
as part of the sentence imposed in accordance with the
applicable statutory provisions?
(Commonwealth’s Brief at 4).
The Commonwealth argues that the court erred by failing to sentence
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Appellee to pay the full amount of restitution related to medical bills paid by
VCAP. The Commonwealth contends that it presented evidence at sentencing
establishing that VCAP paid $10,686.26 to cover the victim’s medical
treatment which resulted from Appellee’s criminal conduct. In the absence of
any testimony or documentation supporting the court’s calculation, the
Commonwealth alleges that the restitution award of only $3,000 to VCAP is
speculative and unsupported by the record. The Commonwealth emphasizes
that Appellee does not dispute that VCAP paid $10,686.26 to cover the victim’s
medical expenses. The Commonwealth also insists it is undisputed that
Appellee caused the stab wound necessitating victim’s medical treatment in
that amount. The Commonwealth maintains the court’s failure to award VCAP
the full amount owed constitutes an illegal sentence. The Commonwealth
concludes that this Court should vacate and remand for the court to enter a
new sentencing order requiring Appellee to pay the full restitution owed to
VCAP in the amount of $10,686.26. We agree.
Initially, we must decide whether the Commonwealth’s issue implicates
the legality of the sentence, as alleged by the Commonwealth, or the
discretionary aspects of sentencing. A challenge to the legality of a sentence
raises a question of law. See Commonwealth v. Smith, 956 A.2d 1029,
1033 (Pa.Super. 2008) (en banc). In reviewing this type of claim, our
standard of review is de novo and our scope of review is plenary.
Commonwealth v. Childs, 63 A.3d 323, 325 (Pa.Super. 2013). “An illegal
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sentence must be vacated…” Commonwealth v. Ramos, 197 A.3d 766, 769
(Pa.Super. 2018) (citation and quotation marks omitted). Moreover,
assuming jurisdiction is proper, “a challenge to the legality of the sentence
can never be waived and may be raised by this Court sua sponte.”
Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa.Super. 2014) (citation
omitted).
In contrast, challenges to the discretionary aspects of sentencing do not
entitle an appellant to an appeal as of right. Commonwealth v. Sierra, 752
A.2d 910, 912 (Pa.Super. 2000). Prior to reaching the merits of a
discretionary sentencing issue:
[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s
brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence appealed
from is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
“The requirement that an appellant separately set forth the reasons
relied upon for allowance of appeal furthers the purpose evident in the
Sentencing Code as a whole of limiting any challenges to the trial court’s
evaluation of the multitude of factors impinging on the sentencing decision to
exceptional cases.” Commonwealth v. Phillips, 946 A.2d 103, 112
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(Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d
240 (2009) (quoting Commonwealth v. Williams, 562 A.2d 1385, 1387
(Pa.Super. 1989) (en banc)) (emphasis omitted) (internal quotation marks
omitted).
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830
A.2d 1013, 1018 (Pa.Super. 2003). 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.” Sierra, supra at 913 (quoting Commonwealth v. Brown, 741
A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567 Pa. 755, 790
A.2d 1013 (2001)).
“[An a]ppellant’s challenge to the amount of restitution set by the trial
court presents a substantial question.” Commonwealth v. Solomon, 247
A.3d 1163, 1167 (Pa.Super. 2021) (en banc). See also Commonwealth v.
Pappas, 845 A.2d 829, 842 (Pa.Super. 2004) (stating appellant raised
substantial question by arguing there was insufficient evidence of value of
stolen property to support restitution award); Commonwealth v. Walker,
666 A.2d 301, 310 (Pa.Super. 1995) (concluding that substantial question is
raised when appellant argues that sentence of restitution is not supported by
record).
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In Commonwealth v. Weir, ___ Pa. ___, 239 A.3d 25 (2020), our
Supreme Court reiterated that “a challenge to the sentencing court’s authority
to order restitution raises a non-waivable legality of sentencing issue. A
challenge to the manner in which the sentencing court exercises that authority
in fashioning the restitution implicates the discretionary aspects of the
sentence.” Id. at ___, 239 A.3d at 37. Therefore, when an appellant claims
that the trial court lacked statutory authority to impose restitution, it is a
legality of sentencing issue. Id. Conversely, where an appellant “challenges
only the amount of the award based on the sentencing court’s consideration
of the evidence of loss presented by the Commonwealth, it is a challenge to
the discretionary aspects of sentencing.” Id. at ___, 239 A.3d at 38.
Instantly, the Commonwealth’s claim is that the trial court erred in
determining the proper amount of restitution the court awarded to VCAP,
which the Commonwealth characterized as speculative. (See
Commonwealth’s Brief at 17). Because the Commonwealth disputes only the
amount of the restitution award, rather than the trial court’s authority to
impose restitution, it is a challenge to the discretionary aspects of Appellee’s
sentence, which must be preserved for our review. See Weir, supra.
Here, the Commonwealth raised its challenge to the amount of
restitution in a timely post-sentence motion, and filed a timely notice of appeal
following the denial of post-sentence motions. Although the Commonwealth
did not include in its brief a separate Rule 2119(f) statement, Appellee did not
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object to this defect, so we may overlook it.3 See Commonwealth v. Kiesel,
854 A.2d 530 (Pa.Super. 2004). The Commonwealth’s issue also raises a
substantial question for our review. See Solomon, supra; Walker, supra.Therefore, we will review the merits of the Commonwealth’s claim.
The Crimes Code provides for restitution for injuries to persons or
property, as follows:
§ 1106. Restitution for injuries to person or property
(a) General rule.—Upon conviction for any crime
wherein:
* * *
(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.
* * *
(c) Mandatory restitution—
(1) The court shall order full restitution:
(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 the Crime Victim’s Compensation Board or
other government agency but shall order the
defendant to pay any restitution ordered for loss
previously compensated by the board to the Crime
Victim’s Compensation Fund or other designated
account when the claim involves a government agency in
addition to or in place of the board. The court shall not
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3 Appellee did not file a brief on appeal.
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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.
* * *
(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.A. § 1106(a)(2), (c)(1)(i), (c)(2)(i) (emphasis added).
Section 1106 makes clear that the legislature intended for a criminal
offender to not only be required to provide restitution to the victim directly,
but also to government agencies which provide reimbursement to the victim.
Commonwealth v. Brown, 603 Pa. 31, 981 A.2d 893 (2009). Additionally,
the amount of the restitution award must be supported by the record and may
not be speculative. Commonwealth v. Rush, 909 A.2d 805, 810 (Pa.Super.
2006). “The court must…ensure that the record contains the factual basis for
the appropriate amount of restitution.” Commonwealth v. Pleger, 934 A.2d
715, 720 (Pa.Super. 2007). The dollar value of the injury suffered by the
victim as a result of the crime assists the court in calculating the appropriate
amount of restitution. Id.Instantly, the Commonwealth sought reimbursement for the amount
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VCAP paid to the victim. At sentencing, the Commonwealth submitted a letter
from VCAP indicating that it approved an award of $10,686.26 in this case.
Notwithstanding the Commonwealth’s claim for that amount, the trial court
stated that it had discretion to determine the restitution award to be paid to
VCAP. In support of the court’s position for reducing the VCAP award, the
court relied upon the provision of Section 1106 that allows the court to
consider “any matters as it deems appropriate.” See 18 Pa.C.S.A. §
1106(c)(2)(i). The court explained the “matters it deemed appropriate” to
reduce the VCAP award from $10,686.26 to $3,000.00 as follows:
The [c]ourt recognizes that [VCAP] has paid medical bills on
behalf of [the victim] in the amount of $10,686.26.
The [c]ourt is now saddled with the task of determining
restitution and looks to the provisions of Title 18 §
1106(c)(2)(i) and other sections related to restitution.
The [c]ourt recognizes that it has the ultimate authority in
determining the appropriateness of restitution.
The court now DIRECTS [Appellee] pay $3,000.00 to the
benefit of…the victim in this case.
As the [c]ourt also recognizes that [VCAP] has paid in
excess of that amount the Court now DIRECTS that the
Greene County Clerk of Courts collect $3,000.00 from
[Appellee] and for the benefit of [VCAP].
The factors that the [c]ourt has considered in determining
the appropriateness of the restitution relate to the jury’s
verdict of acquittal of the charge related to attempted
criminal homicide. The [c]ourt also recognizes the age of
[Appellee], [Appellee]’s vision problems, and the charge to
which he has entered a plea indicates a negligent not
reckless or intentional state of mind.
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The [c]ourt also recognizes and now determines that [the
victim] as the aggressor in starting a fight with Mr. Hunyady
and that actions of [Appellee] amount to at least an
imperfect defense of others.
(N.T. Sentencing, 10/3/19, at 21-22).
Here, the court failed to order restitution in an amount that would fully
reimburse VCAP for the amount it paid the victim for his medical bills. See
18 Pa.C.S.A. § 1106(c)(1)(i). Although VCAP paid $10,686.26 to the victim,
the court ordered Appellee to pay only $3,000.00 to VCAP, which is
approximately one-third of the total VCAP award. Significantly, neither
Appellee nor the Commonwealth disputed the amount that VCAP paid. Our
legislature intended that a defendant fully reimburse any government agency,
including VCAP, which provided funds to the victim. See Brown, supra.
Although the court mentioned some reasons why it was reducing the
amount of restitution sought, the award of only $3,000.00 to VCAP is
speculative given the undisputed evidence establishing the amount of the
victim’s medical bills, which VCAP paid. See Pleger, supra; Rush, supra.Further, the court did not specify how it came up with the $6,000.00
restitution total or why it split that amount evenly between the victim and
VCAP. Under these circumstances, we vacate the restitution portion of the
sentencing order and remand for resentencing. Accordingly, we affirm
Appellee’s conviction but vacate and remand for further proceedings.
Conviction affirmed. Judgment of sentence vacated in part. Case
remanded for further proceedings. Jurisdiction is relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/29/2021
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