Com. v. Clark, A.

J-A04031-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
ANTONIO MAURICE CLARK :
: No. 997 MDA 2017
Appellant
Appeal from the Judgment of Sentence April 20, 2017
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0005877-2016
BEFORE: STABILE, J., NICHOLS, J., and RANSOM*, J.
MEMORANDUM BY RANSOM, J.: FILED MARCH 27, 2018
Appellant, Antonio Maurice Clark, appeals from the judgment of
sentence1 of six months of probation plus fines, costs and restitution in the
amount of $7,723.75, imposed April 20, 2017, following a guilty plea resulting
in his conviction for driving under the influence (general impairment), driving
while operating privilege is suspended or revoked, and careless driving.2 We
vacate and remand for resentencing.
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1 Appellant purports to appeal from the order denying his post-sentence
motion. Appellant's appeal properly lies from the modified judgment of
sentence entered on April 20, 2017, not the order denying his post-sentence
motion. See Commonwealth v. Dreves, 839 A.2d 1122, 1125 n.1 (Pa.
Super. 2003) (en banc); Commonwealth v. Broadie, 489 A.2d 218, 220
(Pa. Super. 1985), appeal denied, (Pa. Oct. 21, 1985) (“A modified sentence
constitutes a new sentence from the date of which the time for filing a notice
of appeal will begin to run anew”).
2 75 Pa.C.S. §§ 3802(a)(1), 1543(a), and 3714(a), respectively.
* Retired Senior Judge assigned to the Superior Court.
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The following factual and procedural history is garnered from the record.
The instant convictions stem from a vehicle accident in August 2016, wherein
Appellant damaged two vehicles and injuries resulted. Notes of Testimony
(N.T.), 3/2/2017, at 2-3. On March 2, 2017, Appellant entered a guilty plea
to driving under the influence, driving while operating privilege is suspended
or revoked, and careless driving. Id. at 2-4. That same day, Appellant was
sentenced to six months probation plus fines and costs. Id. at 5. A restitution
hearing was scheduled for later that month. Following the hearing, Appellant
was ordered to pay the $500 deductible of Kristen Brode, a victim who was
present at the hearing, in restitution. N.T., 3/29/2017, at 2-3. The second
victim in the incident, Quayshana Wiley, did not appear at the hearing. Id.
at 2-6. The court specifically noted that it wanted to determine Appellant’s
restitution to Ms. Wiley less any amounts covered by insurance for her medical
expenses or vehicle damage. Id. at 5-6. The Court granted the
Commonwealth ten days to determine the amount of expenses for which Ms.
Wiley would be responsible for payment out of pocket. Id.
In April 2017, the Commonwealth filed a motion to amend the
restitution, requesting that Appellant pay $7,723.75 ($1,146.75 vehicle value
+ $6,577.00 medical bill) to Ms. Wiley. Commonwealth’s Motion to Amend
Restitution, 4/19/2017, at 2-8. The next day, the trial court granted the
Commonwealth’s motion by completing a suggested order the Commonwealth
provided in its motion. Order of the Court, 4/20/2017. In May 2017, Appellant
timely filed a post-sentence motion, averring that the amount ordered to be
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paid to Ms. Wiley was excessive and violated Appellant’s due process rights.
Defendant’s Post-sentence Motion, 5/2/2017, at 3-5. The Commonwealth
filed a response. In June 2017, the court denied Appellant’s post-sentence
motion.
Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
statement. The trial court issued a responsive opinion.
Appellant presents the following questions for our review:
1. Whether the trial court lacked the jurisdiction to issue an
order amending restitution fifty (50) days after sentencing, and if
so, was that order the equivalent of an illegal sentence?
2. Whether the trial court erred when it denied Appellant’s post-
sentence motion for modification of sentence where Appellant’s
sentence of paying restitution in the amount of seven thousand
seven hundred twenty-three dollars and seventy five cents
($7,723.75) is excessive and unreasonable such that it constitutes
too severe a punishment in light of Appellant’s rehabilitative needs
and what is needed to protect the public?
3. Whether the trial court violated [Appellant’s] due process
rights in determining and ordering restitution without a hearing?
Appellant’s Brief at 6.
In his first claim, Appellant raises a number of arguments in support of
his challenge to the legality of his sentence. Appellant’s Brief at 14-16.
Appellant asserts that the trial court (1) lacked jurisdiction to amend his
sentence fifty days after the imposition of his original sentence, (2) failed to
order an amount of restitution at the time of sentencing, (3) failed to place its
reasons for modification on the record, and that (4) there was no evidence of
causation between Appellant’s actions and the amount of restitution due to
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Ms. Wiley. Id. Appellant has failed to support his assertions with citations to
legal authority; therefore, his claims are under developed, and he risks
waiver.3 Commonwealth v. Antidormi, 84 A.3d 736 (Pa. Super. 2014)
(Defendant waived his claim of error where he cited no legal authority to
support his assertions and developed no cogent argument), appeal denied 95
A.3d 275 (Pa. 2014); Pa.R.A.P., Rule 2119.
Nevertheless, we note, “it is well settled that this Court may address the
legality of a sentence sua sponte.” Commonwealth v. McCamey, 154 A.3d
352, 357 (Pa. Super. 2017) (citing Commonwealth v. Infante, 63 A.3d 358,
363 (Pa. Super. 2013)). Our standard of review in a challenge to the legality
of sentence is de novo, and our scope of review is plenary. See
Commonwealth v. Gentry, 101 A.3d 813, 817 (Pa. Super. 2014).
Here, the trial court sought to impose restitution as part of Appellant’s
direct sentence, as evidenced by the court’s reliance on 18 Pa.C.S. § 1106.
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3 Though raised for the first time on appeal, Appellant’s claim challenging the
legality of his sentence and his argument that the court lacked jurisdiction
may be raised at any stage of proceedings. See Commonwealth v. Jones,
929 A.2d 205, 210 (Pa. 2007) (“challenges to subject matter jurisdiction
cannot be waived” and may be raised at any stage of proceedings) (citing
Commonwealth v. Little, 314 A.2d 270, 272 (Pa. 1974)); Commonwealth
v. Foster, 17 A.3d 332, 334 n.1 (Pa. 2011) (“A challenge to the legality of
sentence, however, need not be preserved and is never waivable.”) (citing In
re M.W., 555 Pa. 505, 725 A.2d 729 (1999)).
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See Trial Court Opinion, 8/1/2017, at 2.4 As our Supreme Court has
explained:
[R]estitution must properly be included in a sentence.
Commonwealth v. Dinoia, 801 A.2d 1254, 1257 n.1 (Pa. Super.
2002); Commonwealth v. Torres, 579 A.2d 398, 401 (Pa.
Super. 1990). Section 1106(c)(2) provides that “[a]t the time of
sentencing the court shall specify the amount and method of
restitution.” 18 Pa.C.S. § 1106(c)(2). Further, “[i]t shall be the
responsibility of the district attorneys of the respective counties to
make a recommendation to the court at or prior to the time of
sentencing as to the amount of restitution to be ordered; ... based
upon information solicited by the district attorney and received
from the victim.” Id., [18 Pa.C.S.] § 1106(c)(4)(i). In Dinoia,
the Superior Court held these requirements “provide[ ] the
defendant with certainty as to his sentence, and at the same time
allow[ ]for subsequent modification [pursuant to § 1106(c)], if
necessary.” Dinoia, at 1257.
Commonwealth v. Dietrich, 970 A.2d 1131, 1134 (Pa. 2009) (some
formatting added). Failure to comply with Section 1106(c)(2) results in an
illegal sentence. Commonwealth v. Mariani, 869 A.2d 484, 485-86 (Pa.
Super. 2005) (invalidating trial court’s order at the sentencing hearing which
failed to specify both the amount and method of restitution and postponed
determining same until after sentencing hearing); Commonwealth v.
Deshong, 850 A.2d 712, 715–16 (Pa. Super. 2004) (same) (citing Dinoia,
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4 “Restitution is authorized under both the Crimes Code and under the
Sentencing Code. The Crimes Code, in 18 Pa.C.S. § 1106, controls restitution
as a direct sentence. The Sentencing Code, in 42 Pa.C.S. § 9754, permits a
sentence of probation and offers a non-exclusive list of permissible conditions
of probation, including restitution.” Commonwealth v. Deshong, 850 A.2d
712, 715–16 (Pa. Super. 2004).
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801 A.2d at 1257 n.1); Commonwealth v. Torres, 579 A.2d 398, 401 (Pa.
Super. 1990) (same).
Rather than setting the amount and method of restitution at the time of
sentencing, the court ordered a subsequent hearing to determine the amount
of restitution due each victim. N.T., 3/2/2017, at 5-6. As the court failed to
comply with Section 1106(c)(2), Appellant’s sentence is illegal. Mariani, 869
A.2d at 486-87.
Further, in its subsequent order, issued April 20, 2017, which modified
the amount of restitution imposed, the court further erred. The Crimes Code
provides restitution may be altered or amended at any time, provided that the
court gives its reasons and conclusions for any change on the record. 18
Pa.C.S. § 1106(c)(3); see also Dietrich, 970 A.2d at 1135 (vacating and
remanding amended restitution order where trial court’s failure provide
reasons for modification as a matter of record rendered the order out of
compliance with 18 Pa.C.S. § 1106(c)(3)).
In the instant matter, the trial court has conceded that its April 20, 2017
order “did not contain a specific recitation of [its] reasoning.” Trial Court
Opinion, 8/1/2017 at 2-3. Accordingly, we are constrained to vacate
Appellant’s sentence on this ground as well. Dietrich, 970 A.2d at 1135; 18
Pa.C.S. § 1106(c)(3).
The court intended Appellant’s sentence to consist of both probation and
monetary elements that were not imposed contemporaneously. Thus, the
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Appellant’s sentence is illegal. Mariani, 869 A.2d at 486–87 (“[T]he illegality
of one part invalidates the whole.”). When a disposition by an appellate court
alters the sentencing scheme, the entire sentence should be vacated and the
matter remanded for resentencing. Deshong, 850 A.2d at 714 (citing
Commonwealth v. Goldhammer, 517 A.2d 1280 (Pa. 1986),
Commonwealth v. Farone, 808 A.2d 580 (Pa. Super. 2002)).5
Accordingly, we vacate the judgment of sentence as rendered final by
the trial court’s April 20, 2017 order and remand for resentencing in
compliance with 18 Pa.C.S.A. § 1106(c).
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
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5 At the restitution hearing and in its opinion, the trial court explicitly explained
that it sought to consider amounts tendered from the victims’ respective
insurance companies to determine the amounts of restitution to be paid as a
result of the accident. See N.T., 3/29/2017, at 2-6; Trial Court Opinion,
8/1/2017, at 2-3. This, too, is improper. See 18 Pa.C.S. § 1106(c)(1)(i)
(“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.”). In light of our disposition, we do not
reach the merits of Appellant’s remaining issue on appeal.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/27/2018
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