Com. v. Kalkbrenner, K.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KARL K KALKBRENNER
Appellant No. 1094 WDA 2012
Appeal from the Judgment of Sentence January 6, 2012
In the Court of Common Pleas of Venango County
Criminal Division at No(s): CP-61-CR-0000619-2003
BEFORE: DONOHUE, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED JANUARY 14, 2015
Karl K. Kalkbrenner appeals from the judgment of sentence imposed
on January 6, 2012, and as amended on June 18, 2012, in the Venango
County Court of Common Pleas. On November 17, 2011, a jury found
Kalkbrenner guilty of driving under the influence of alcohol (“DUI”)
(incapable of safe driving).1 Moreover, the court convicted him of careless
driving, driving a vehicle at safe speed, and failure to keep right.2 The court
sentenced Kalkbrenner to county imprisonment for a period of 30 days to 24
months, as well as fines, costs, and restitution. On appeal, Kalkbrenner
complains the court erred in awarding restitution and witness travel fees,
____________________________________________
1
See 75 Pa.C.S. § 3731(a)(1).
2
See 75 Pa.C.S. §§ 3714, 3361, and 3301, respectively.
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and by failing to dismiss the summary offenses based on the statute of
limitations. For the reasons set forth below, we affirm.
The trial court set forth the facts and lengthy procedural history as
follows:
[Kalkbrenner] was convicted by a jury on June 19, 2008,
of Driving Under the Influence of Alcohol – General Impairment
in violation of 75 Pa.C.S.A. § 3731(a)(1),1 a Misdemeanor 2,
based upon events which resulted in a motor vehicle accident on
February 10, 2003. Evidence at trial established that
[Kalkbrenner]’s vehicle crossed into the oncoming lane of traffic
while negotiating a turn during snowy and icy road conditions.
[Kalkbrenner]’s vehicle then caused a head-on collision with a
van carrying eleven (11) passengers, at least seven (7) of whom
suffered serious bodily injury.2
1
75 Pa.C.S.A. § 3731(a)(1) is now 75 Pa.C.S.A. §
3802(a).
2
Most of the passengers in the van were Amish.
Some passengers declined to pursue legal action as
it conflicted with various tenets of their faith. Thus,
it is highly likely that more than seven (7)
passengers received some bodily injury and property
damage in the accident but chose not to participate
in this case.
[Kalkbrenner] was acquitted by the jury of seven (7)
counts of Aggravated Assault by Vehicle While DUI as to the
seven (7) passengers in the van, in violation of 75 Pa.C.S.A. §
3735.1(a), a Felony 2, as well as Driving Under the Influence of
Alcohol, in violation of 75 Pa.C.S.A. § 3731(a)(4),3 a
Misdemeanor 2. The court found [Kalkbrenner] guilty of the
following Summary Offenses: Careless Driving, in violation of 75
Pa.C.S.A. §3714; Driving a Vehicle at Safe Speed in violation of
75 Pa.C.S.A. § 3361, and Failure to Keep Right, in violation of 75
Pa.C.S.A. § 3301(a). The court found [Kalkbrenner] not guilty of
Failure to Use Safety Belt System, in violation of 75 Pa.C.S.A.
[§] 4581(a)(2).
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3
75 Pa.C.S.A. § 3731(a)(4) is now 75 Pa.C.S.A. §
3802(b).
On September 2, 2008, this court sentenced [Kalkbrenner]
to ninety (90) days of imprisonment, the first thirty (30) days to
be served incarcerated in the Venango County Jail, and the
remaining sixty (60) days to be served on house
arrest/electronic monitoring. This court also imposed fines,
costs, and fees in connection with the vehicle code violations, as
well as restitution, due to the injuries [Kalkbrenner] caused to
the seven (7) victims as the result of the accident when
[Kalkbrenner]’s vehicle crossed over into oncoming traffic and
collided with the passenger van. The aggregate restitution
amount ordered amounted to $128,403.05.4
4
The Sentencing Order lists the amount owed to
each individual victim in this case, as identified by
claim numbers.
On September 11, 2008, [Kalkbrenner] filed consolidated
Post Sentence Motions for Relief which were granted in part and
denied in part in our Opinion and Order of Court dated January
8, 2009. [Kalkbrenner] filed his Notice of Appeal on February 5,
2009. This court received the Concise Statement on February
25, 2009, and we issued our [Pa.R.A.P.] 1925(a) Opinion on
April 15, 2009. Subsequently, the Superior Court, in its opinion
dated November 3, 2010, reversed judgment of sentence and
remanded for a new trial.
On November 17, 2011, [Kalkbrenner] was tried again and
found guilty of one (1) count of Driving Under the Influence of
Alcohol/Incapable of Safe Driving, in violation of 75 Pa.C.S.A. §
3731(a)(1), a Misdemeanor 2; one (1) count of Careless Driving,
in violation of 75 Pa.C.S.A. § 3714, a Summary Offense; one (1)
count of Driving a Vehicle at Safe Speed, in violation of 75
Pa.C.S.A. § 3361, a Summary Offense; and one (1) count of
Failure to Keep Right, in violation of 75 Pa.C.S.A. § 3301, a
Summary Offense. Subsequently, [Kalkbrenner] was sentenced
on January 6, 2012. In our Sentence and Order of Court,
[Kalkbrenner] was sentenced to fines, costs, and restitution.5
5
The breakdown of individual restitution amounts is
itemized in our Sentence and Order of Court dated
January 6, 2012.
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On January 17, 2012, [Kalkbrenner] filed Post Sentence
Motions and a hearing was subsequently scheduled for February
9, 2012, but was later continued to April 30, 2012.6 In the
meantime, [Kalkbrenner] filed a Supplemental Post Sentence
Motion on March 29, 2012, which was followed by a Second
Supplemental Post Sentence Motion filed on April 3, 2012. [An
evidentiary hearing was held on April 30, 2012.] Defense
counsel further filed a Memorandum of Corrections [that same
day].7 By Order of Court dated June 18, 2012, we amended our
Sentence and Order of Court dated January 6, 2012.
[Kalkbrenner] filed his Notice of Appeal on July 11, 2012. That
same day, [Kalkbrenner] was directed to file with this court a
Concise Statement of Errors Complained of on Appeal in
accordance with Pa.R.A.P. 1925. The present Concise Statement
was filed on July 31, 2012.8
6
We issued an Order of Court dated February 1,
2012, scheduling a Restitution Hearing for March 29,
2012. Subsequently, the court was informed of the
unavailability of the victims on that day, therefore
we continued the hearing until July 6, 2012, by
Order of Court dated March 29, 2012. Later that
day[,] we vacated the Order scheduling the
restitution hearing, preferring instead to hear
arguments on restitution along with the other issues
raised in [Kalkbrenner]’s Post Sentence Motions for
Relief, which was then scheduled for April 30, 2012.
7
Defense counsel’s filing was actually titled
“Memorandum and Summary of Corrections,
Alterations, and Fixes to be made to Restitution,
Fees and Costs.”
8
The Commonwealth also appealed to Superior
Court our Order of Court dated June 18, 2012. The
Commonwealth was directed to file its Concise
Statement by Order of Court dated July 23, 2012,
which was subsequently done on August 13, 2012.
The Commonwealth’s appeal was later dismissed for
failure to comply with Pa.R.A.P. 3517, in a Per
Curiam Order by the Superior Court dated
September 17, 2012.
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Trial Court Opinion, 11/13/2012, at 1-3.
For purposes of this appeal, we will set forth the January 6, 2012
judgment of sentence, and the June 18, 2012, amended sentence. In the
January 6th judgment, the court stated, in relevant part:
AND NOW, this 6th day of January 2012, the SENTENCE
and ORDER of Court on Count 1, Driving Under the Influence of
Alcohol/Incapable of Safe Driving, in violation of 75 Pa.C.S.A. §
3731(a)(1), a Misdemeanor 2, is that you, Karl K. Kalkbrenner,
Defendant, pay [a] fine of $700.00, pay the costs of
prosecution and all other costs, pay an additional mandatory
cost of $100.00 pursuant to 18 Pa.C.S.A. § 7508.1(c), and make
restitution payable to the Clerk of Courts, Venango County
Courthouse, Franklin, Pennsylvania, 16323, in the amount of
$57,603.70 for the use of Donald Seeley …; and in the amount
of $354.84 for the use of Peter Leslein …; in the amount of
$3,732.00 for the use of Lester Byler …; and in the amount of
$435.00 for the use of Jeremiah Miller …; and in the amount of
$600.00 for the use of Henry Byler …; and in the amount of
$142.00 for the use of Alton Miller …; and in the amount of
$5,741.05 for the use of Amos Lee …; and in the aggregate
amount of $59,794.46 for the use of The Crime Victims
Compensation Fund, specifically claim #200303557 in the
amount of $8,995.44; claim #200303562 in the amount of
$516.14; claim #200303563 in the amount of $11,889.15; claim
#200303564 in the amount of $406.04; claim #200303565 in
the amount of $2,987.69; claim #200303569 in the amount of
$35,000.00, P.O. Box 1167, Harrisburg, Pennsylvania 17108-
1167, (the aggregate total of restitution ordered is
$128,403.05), and undergo an imprisonment in the VENANGO
COUNTY JAIL for and during the period of not less than THIRTY
(30) DAYS, and not more than TWENTY-FOUR (24) MONTHS
LESS ONE DAY, to be computed from today’s date, at the Jail to
be kept, fed, clothed, and treated as the law directs, and stand
committed to the custody of the Warden that sentence may be
carried into execution.
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Sentence, 1/6/2012, at 1-2 (some emphases removed and some emphases
added).3
In the June 18, 2012, amended sentencing order, the court stated, in
relevant part:
Under 18 Pa.C.S.A. § 1106 and 42 Pa.C.S.A. § 9721,
the Court is mandated to impose restitution upon a
defendant convicted for a crime that results in the victim
sustaining injury from the defendant’s criminal act.
Therefore, our Sentence and Order of Court dated January 6,
2012, remains in effect with the following changes. As the
Crimes Victims Compensation Fund received $16,009.47, under
its right of subrogation, the aggregate amount of $59,794.46
[Kalkbrenner] was ordered to pay to the Crime Victims
Compensation Fun is reduced to $43,784.99. The individual
people referenced in our previously referenced Order of Court, to
whom [Kalkbrenner] shall make restitution payments, also stays
in effect. Any releases signed due to settlements in civil
cases against the defendant do not serve to offset
restitution requirements. See Commonwealth v. Pleger, 934
A.2d 715, 720-721 (Pa. Super. Ct. 2007). In addition, as
[Kalkbrenner] was successful in an appeal to the Superior Court
at Docket Number 182 WDA 2009, pursuant to Pa.R.A.P.
2741(3), 2742, 2743, and 2771, he is entitled to all allowable
costs, totaling $230.92. Said costs to be credited against the
outstanding cost owed in the above captioned case by
[Kalkbrenner]. Furthermore, the reduction in the billed amount
from Dr. Vey to $2,500.00, in our Order of Court dated
September 17, 2008, remains.
At the time of sentencing, the Court imposed restitution
regarding the victim, Donald Seeley, in the aggregate amount of
$57,603.70. The Commonwealth did not supply any breakdown
of this total and it is the understanding of the Court that this
amount reflected the medical bills incurred by Donald Seeley.
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3
The court also ordered Kalkbrenner to pay a fine of $25.00 for each of his
summary convictions, careless driving, driving a vehicle at a safe speed, and
failure to keep right.
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As all of these bills were discharged in bankruptcy filed by
Donald Seeley, the Court hereby reduces the restitution
ordered to Donald Seeley by $57,603.70, leaving a $0.00
balance due.
…
Therefore, [Kalkbrenner]’s Post-Sentence Motions for
Relief filed January 17, 2012, as well as [Kalkbrenner]’s Second
Supplement to Post Sentence Motion filed April 3, 2012, are,
hereby, GRANTED in part and DENIED in part. The Clerk of
Courts is directed to amend the restitution ordered to reflect the
$0.00 balance due to Donald Seeley, $43,784.99, to the Crime
Victims Compensation Fund, for a total aggregate restitution
order of $54,789.88. Additionally, the Clerk of Courts is directed
to credit [Kalkbrenner] with $230.92 towards cost in this case.
All other amounts contained in the Sentence Order of Court
dated January 6, 2012, remain as previously set.
Order of Court, 6/18/2012, at 1-3 (emphases added). We now turn to the
merits of Kalkbrenner’s claims.
In his first argument, Kalkbrenner complains the court committed an
error of law when it ordered him to pay restitution to several named victims
and to the Pennsylvania Crime Victims Compensation Fund. See
Kalkbrenner’s Brief at 14. Specifically, he asserts restitution was not
appropriate because there is “no direct link between the injuries suffered
and the sole criminal count for which [Kalkbrenner] was convicted.” Id.Relying on Commonwealth v. Cooper, 466 A.2d 195 (Pa. Super. 1983),
Kalkbrenner argues that since he was found guilty of DUI, and not guilty of
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aggravated assault by vehicle,4 the jury did not “find any negligence
attributable to” him. Id. at 17.5 Moreover, he states, “The jury clearly saw
that what happened was an accident, caused by deplorable road conditions
and fate. [Kalkbrenner] did not cause the accident and was found not guilty
of causing the accident.” Id. at 17-18 (some capitalization removed).
Additionally, Kalkbrenner argues that because several of the victims were
not wearing seatbelts when the accident occurred, the court should
apportion the damages due to the fact that “criminal misconduct was not
[the] sole cause of the victims’ injuries.” Id. at 18.
With respect to Kalkbrenner’s causation argument, his challenge
concerns the legality of the sentence because he assails the trial court’s
authority to impose restitution.
In the context of criminal proceedings, an order of “restitution is
not simply an award of damages, but, rather, a sentence.”
Commonwealth v. C.L., 2008 PA Super 286, 963 A.2d 489,
494 (Pa. Super. 2008) (citation omitted). An appeal from an
order of restitution based upon a claim that a restitution order is
unsupported by the record challenges the legality, rather than
the discretionary aspects, of sentencing. Commonwealth v.
Redman, 2004 PA Super 473, 864 A.2d 566, 569 (Pa. Super.
2004), appeal denied, 583 Pa. 661, 875 A.2d 1074 (2005).
“[T]he determination as to whether the trial court imposed an
illegal sentence is a question of law; our standard of review in
cases dealing with questions of law is plenary.”
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4
75 Pa.C.S. § 3735.1.
5
It merits mention that at Kalkbrenner’s second trial, the only charge on
the verdict slip for jury deliberation was DUI. See Verdict, 11/17/2011.
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Commonwealth v. Hughes, 2009 PA Super 240, 986 A.2d
159, 160 (Pa. Super. 2009) (citation omitted).
Commonwealth v. Atanasio, 997 A.2d 1181, 1182-1183 (Pa. Super.
2010).
“In Pennsylvania restitution can be imposed either as a condition of
probation or as a direct sentence.” Commonwealth v. Fuqua, 407 A.2d
24, 26 (Pa. Super. 1979) (footnote omitted). Here, the order of restitution
was a direct sentence imposed by the authority of Section 1106 of the
Pennsylvania Crimes Code and Section 9721 of the Pennsylvania Sentencing
Code. See Order of Court, 6/18/2012, at 1.
Section 1106 provides, in pertinent part:
(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.
18 Pa.C.S. § 1106(a). Section 9721 states, in relevant part:
(c) Mandatory restitution. -- In addition to the alternatives set
forth in subsection (a) of this section the court shall order the
defendant to compensate the victim of his criminal conduct for
the damage or injury that he sustained. For purposes of this
subsection, the term “victim” shall be as defined in section 479.1
of the act of April 9, 1929 (P.L.177, No.175), known as The
Administrative Code of 1929.
42 Pa.C.S. § 9721(c).
The Pennsylvania Supreme Court has previously held Section 1106 “is
clear on its face and applies only for those crimes to property or person
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where there has been a loss that flows from the conduct which forms the
basis of the crime for which a defendant is held criminally accountable.”
Commonwealth v. Barger, 956 A.2d 458, 465 (Pa. Super. 2008), citing
Commonwealth v. Harner, 617 A.2d 702, 704 (Pa. 1992). Therefore,
restitution is a proper sentence only if there is a “direct causal connection
between the crime and the loss.” Commonwealth v. Harriott, 919 A.2d
234, 238 (Pa. Super. 2007) (citation omitted), appeal denied, 934 A.2d 72(Pa. 2007). See also Commonwealth v. Oree, 911 A.2d 169, 174 (Pa.
Super. 2006) (courts utilize a "but for" test in calculating damages which
occurred as a direct result of the crime), appeal denied, 918 A.2d 744 (Pa.
2007).
Contrary to Kalkbrenner’s argument, this Court has made clear that
restitution for a DUI-alcohol conviction may be imposed as part of the
judgment of sentence where there is an explicit finding by the trial court that
damage occurred as the direct result of the crime of DUI-alcohol related or
where the record clearly implies that the damage occurred as a direct result
of the crime of DUI. See Fuqua, supra; Commonwealth v. Walker, 666
A.2d 301 (Pa. Super. 1995), appeal denied, 680 A.2d 1161 (Pa. 1996).
In Fuqua, the defendant lost control of his car and crashed into the
victim’s house. He was found guilty of DUI, following a non-jury trial during
which he denied being intoxicated and testified that he had not crashed into
the home. The judge convicted the defendant of DUI and sentenced him to
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one year of probation. The judge also ordered him to make restitution to
the victim. Fuqua, 407 A.2d at 25. The defendant argued the record did
not support the order of restitution because the court failed to make a
specific finding that the property damage sustained by the victim was a
direct result of the defendant’s crime of DUI. Id. at 27-28. On appeal, this
Court affirmed the sentence, holding:
Our own review of the record discloses that the court below did
indeed fail to make such a finding on the record. Normally,
where the lower court fails to support its sentence on the record,
we will vacate the sentence and remand for resentencing. See
Commonwealth v. Riggins, supra; Commonwealth v.
Wertz, 252 Pa.Super. 584, 384 A.2d 933 (1978). In this case,
however, the evidence is clear that the order of restitution was
for the damages to the [victim’s] house; the lower court did find
that [the defendant] did in fact collide with the house and cause
the damage to the front porch and foundation. While the lower
court should have specifically found that this damage was a
direct result of [the defendant]’s crime of driving while under the
influence, to remand for resentencing would be a useless
procedural exercise. The missing specific finding is
unmistakeably [sic] implied in the findings that the court did
make.
Id. at 28.
In Walker, the defendant pled guilty to two counts of DUI. The
charges arose from a two-car collision in which two occupants of the other
vehicle were severely injured. The defendant was ordered to pay restitution
as a part of his sentence. On appeal, he argued, in pertinent part, that
“restitution is not proper where there is insufficient evidence that the
victim's injuries directly resulted from the crime[.]” Walker, 666 A.2d at
307. Finding Fuqua controlling, a panel of this Court concluded:
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Although the evidence relied upon by the trial court did not arise
during trial because of [the defendant]’s guilty plea,
nevertheless, in language quoted supra at the sentencing
hearing, the court found that [the defendant]’s driving while
under the influence was a substantial factor in causing the
injuries to the victims. Just as this finding of causation supports
the sentencing court’s decision to apply the enhanced sentencing
guideline, it likewise supports the court’s decision to impose
restitution.
Id. at 309 (citation omitted).
Turning to the present matter, the trial court stated in its June 18,
2012 amended sentencing order, “Under 18 Pa.C.S.A. § 1106 and 42
Pa.C.S.A. § 9721, the Court is mandated to impose restitution upon a
defendant convicted for a crime that results in the victim sustaining injury
from the defendant’s criminal act. Therefore, our Sentence and Order of
Court dated January 6, 2012, remains in effect[.]” Order of Court,
6/18/2012, at 1. In its Rule 1925(a) opinion, the court further explained:
We note that we addressed the issue of imposing
restitution upon [Kalkbrenner] … in our Opinion and Order of
Court dated January 8, 2009. We are cognizant of the fact that
[Kalkbrenner] was awarded a retrial, yet the jury verdict on
November 17, 2011, in the retrial resulted in a verdict of guilty
as to Driving Under the Influence of Alcohol/Incapable of Safe
Driving, in violation of 75 Pa.C.S.A. § 3731(a)(1), a
Misdemeanor 2. The court’s rationale in awarding restitution
remains the same as it was when we set forth our reasoning in
our Opinion of January 8, 2009:
[Kalkbrenner] argues that the [c]ourt improperly
imposed restitution for the injuries he caused to
seven victims in the van he collided with in the
oncoming lane of traffic …. Restitution may be
imposed by the sentencing court where the
defendant is convicted of DUI – General Impairment
and it is impossible to separate the defendant’s
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drunk driving from the injuries resulting to the
victims. Commonwealth v. Walker, 446 Pa.
Super. 43, 55-56, 666 A.2d 301, 307-308 (1995)
(citing Commonwealth v. Fuqua, 267 Pa. Super.
504, 407 A.2d 24 (1979)). [Kalkbrenner] was
convicted of DUI – General Impairment, and the
facts of this case show that [Kalkbrenner]’s impaired
condition was a significant and substantial cause of
the property damages and personal injuries to the
innocent victims in this case.[10] …
Commonwealth v. Kalkbrenner at C.R. No. 619-2003, Order
and Opinion of Court, dated January 8, 2009.
10
While we quote from our Opinion dated January
8, 2009, denying [Kalkbrenner]’s Post-Sentence
Motions, we find it instrumental to note it was
adduced during the retrial that [Kalkbrenner]’s
judgment was affected due to his consumption of
alcohol and was a contributory factor to his losing
control of his vehicle and the ensuing crash. See
N.T., Jury Trial Day 2, Motion for Mistrial by
Defendant and Curative Instruction, pp. 1-3.
We find no fault in our prior rationale; in fact, that same
rationale was at work in our Sentence and Order of Court dated
January 6, 2012, following the retrial.
Trial Court Opinion, 11/13/2012, at 5-6.
We agree with the court’s analysis and its finding that Fuqua and
Walker are applicable to the present matter. Although Kalkbrenner was
acquitted of aggravated assault by vehicle while DUI, the jury did convict
him of DUI (incapable of safe driving). Furthermore, the court found him
guilty of careless driving, driving a vehicle at safe speed, and failure to keep
right. In ordering restitution, even though the trial court’s sentencing order
does not include an explicit finding that the injuries to the victims were the
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direct result of Kalkbrenner’s DUI conviction, the court explained in its Rule
1925(a) opinion that Kalkbrenner’s act of DUI could not be separated from
the injuries suffered by the multiple victims.6 See Fuqua. Therefore, we
determine the court did not err in concluding that but-for Kalkbrenner’s
actions on the night in question, the damage to the other vehicle, and the
injuries suffered by the victims, would not have occurred. See Fuqua,
supra; Walker, supra.Furthermore, we reject Kalkbrenner’s reliance on Cooper, supra, as it
is distinguishable from the present matter. In Cooper, the appellant was
driving when he struck and killed a young boy riding a bicycle. Cooper, 466
A.2d at 196. The appellant pled guilty to a lesser included offense of leaving
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6
We note that while the certified record contains notes of testimony from
the second day of trial, see N.T., 11/15/2011 (motion for mistrial by
defense and curative instruction), it does not include trial transcripts from
the first day of trial on November 14, 2011 and the last day on November
17, 2011. Based on this Court’s inquiry, these transcripts were not
requested by counsel and therefore, they were not made available at the
trial court level. “[W]e can only repeat the well established principle that
‘our review is limited to those facts which are contained in the certified
record’ and what is not contained in the certified record ‘does not exist for
purposes of our review.’” Commonwealth v. B.D.G., 959 A.2d 362, 372
(Pa. Super. 2008), quoting Commonwealth v. O’Black, 897 A.2d 1234,
1240 (Pa. Super. 2006). Moreover, “it is the appellant’s burden to ensure
that the certified record is complete.” Commonwealth v. Landis, 89 A.3d
694, 698 n.5 (Pa. Super. 2014), citing Pa.R.A.P. 1921. Therefore,
Kalkbrenner has waived any challenge to the court’s factual findings. See
B.D.G., 959 A.2d at 373 (claim waived for failure to include relevant
document in certified record).
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the scene of a fatal accident.7 A panel of this Court vacated the restitution
order because “the death of the victim stemmed from the collision itself, not
appellant’s act of leaving the scene of the accident, and appellant was not
charged or convicted of any crime holding him criminally responsible for
having struck and killed the victim.” Cooper, 466 A.2d at 197. As this
Court explained in Walker, supra:Support for the Cooper holding is found in [Commonwealth v.
Harner, 617 A.2d 702 (Pa. 1992)], a case in which a wife was
ordered to pay restitution to her ex-husband for expenses he
incurred tracking down and reclaiming his children, after wife
violated a custody order and removed the children from her ex-
husband’s home. In finding that wife could not be ordered to
pay restitution, the Harner court stated:
Because this section [§ 1106] imposes restitution as part
of a sentence, its penal character must not be overlooked
and it would seem to us that restitution can be permitted
under 18 Pa.C.S. § 1106 only as to losses for which the
defendant has been held criminally accountable. This is in
keeping with the well established principle that criminal
statutes must be strictly construed....
In fact, the very words of the statute provide that it is
applicable only upon conviction for a 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. No
such crime has been committed here by Appellant. Unless
the incidental costs Mr. Harner expended to locate his
children have been made part of a criminal proceeding for
which Appellant was convicted, it seems dubious to us that
due process would permit a court to determine that these
are losses that can be passed on to Appellant, as a
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7
See 75 Pa.C.S. § 3744.
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sentence, under a theory that they flowed as a direct
result of the crime for which Appellant was convicted.
... [The Superior Court and the Commonwealth argue for]
a strained reading of an otherwise straightforward statute
which is directed at giving the trial court the ability to
sentence a defendant for the damage caused by him in the
commission of a crime. Thus, where one steals an
automobile valued at $15,000 and during a high
speed chase is involved in a wreck which damages
the auto, reducing its value to $5,000, it would be
appropriate, in addition to incarceration, upon
conviction for theft, to require the defendant to pay
the victim $10,000 for the loss of value to the auto.
It is impossible to separate the actions of the theft
from the damage done to the car and in this sense
the decrease in value to the car is a direct result of
the crime.
Walker, 666 A.2d at 309-310 (some citations omitted; emphasis added).
Both Cooper and Harner are distinguishable from the present matter
as the defendants could not be considered criminally responsible for the
identified harm based on their specific convictions. Rather, the facts in the
present matter are analogous to the high speed wreck example set forth in
Harner. It is impossible to separate Kalkbrenner’s act of driving under
influence from the damage done during the accident. Accordingly, we find
no error in the court’s restitution sentence as the record supports a finding
that there was a causal connection between the crimes Kalkbrenner was
convicted of and the resulting damages to the victims.
With respect to Kalkbrenner’s apportionment argument, we note that
as a general rule, challenges concerning the amount of restitution awarded
involve the discretionary aspects of sentencing. In the Interest of M.W.,
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725 A.2d 729, 731, n.4 (Pa. 1999). It appears that apportionment in
restitution matters implicates the discretionary aspects of sentencing since it
concerns the amount, rather than the court’s authority to impose such a
sentence.
“Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal absent a
manifest abuse of discretion.” Commonwealth v. Sheller, 961 A.2d 187,
190 (Pa. Super. 2008), appeal denied, 980 A.2d 607 (Pa. 2009). “A
challenge to the discretionary aspects of a sentence must be considered a
petition for permission to appeal, as the right to pursue such a claim is not
absolute.” Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa. Super. 2007)
(citation omitted). To reach the merits of a discretionary issue, this Court
must determine whether:
We 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. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (internal
quotation marks, citations, and modifications omitted).
Here, a review of the record reveals that Kalkbrenner did not raise the
issue in either his January 17, 2012 post-sentence motion or April 3, 2012
second supplement to post sentence motions, or at the April 30, 2012,
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restitution hearing.8 Moreover, he did not include a Rule 2119(f) concise
statement in his brief. Therefore, the issue has been waived for appellate
purposes. See Pa.R.A.P. 302(a) (stating that issues not raised in the lower
court are waived and cannot be raised for the first time on appeal).
Next, Kalkbrenner argues the court erred in awarding restitution
because “[e]very individual who was awarded restitution signed a release.”
Kalkbrenner’s Brief at 19. Moreover, he contends the court erred in relying
on Commonwealth v. Pleger, 934 A.2d 715 (Pa. Super. 2007), which he
states “was wrongly decided and unworthy of stare decisis.” Id. To support
this argument, Kalkbrenner points to the following alleged errors in Pleger:
(1) the application of a civil release in a criminal proceeding was not the
main issue in the case, and therefore, the parties and the trial court did not
properly analyze the issue; (2) the decision cited no Pennsylvania precedent
to support its conclusion; (3) the court improperly held that a restitution
order did not create a creditor-debtor relationship between the victim and
____________________________________________
8
It bears remarking that Kalkbrenner did raise the same issue in his
September 11, 2008, post-sentence motion. However, he did not renew this
argument after the matter was remanded by a panel of this Court for a new
trial, and the trial court imposed its January 6, 2012 judgment of sentence,
and June 18, 2012, amended sentence. See Commonwealth v. Levy, 83
A.3d 457, 467 (Pa. Super. 2013) (defendant waived issues where he did not
raise any of the arguments regarding the trial court’s exercise of its
discretion in granting the Commonwealth’s motion or in fashioning his
second sentence).
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the offender because statutory authority9 did create such a relationship; and
(4) the court failed to consider the ramifications and injustices which will
result by ignoring civil releases. Id. at 20-22. Lastly, Kalkbrenner
complains that even if Pleger was properly decided, it cannot be
retroactively applied to the releases at issue, which were executed in 2003
before Pleger was decided in 2007. Id. at 23-25.
We disagree. First, we emphasize the following: An order of
restitution “constitutes a ‘constructive tool[] in the criminal justice
jurisprudence.’” Fuqua, 407 A.2d at 25 (citation omitted). “The primary
purpose of restitution is rehabilitation of the offender by impressing upon
him that his criminal conduct caused the victim’s personal injury and that it
is his responsibility to repair the injury as far as possible.” Commonwealth
v. Keenan, 853 A.2d 381, 382-383 (Pa. Super. 2004) (citation omitted).
“In determining the amount of restitution to be ordered, a sentencing court
____________________________________________
9
Specifically, 42 Pa.C.S. § 9728(b)(1), which sets forth the procedure for
collecting restitution, as follows:
(1) The county clerk of courts shall, upon sentencing, pretrial
disposition or other order, transmit to the prothonotary certified
copies of all judgments for restitution, reparation, fees, costs,
fines and penalties which, in the aggregate, exceed $ 1,000, and
it shall be the duty of each prothonotary to enter and docket the
same of record in his office and to index the same as judgments
are indexed, without requiring the payment of costs as a
condition precedent to the entry thereof.
Id.
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must consider three factors: the loss or damage directly caused by the
defendant’s criminal act, the amount of restitution he can afford to pay, and
the method by which he should pay it.” Commonwealth v. Reed, 543
A.2d 587, 589 (Pa. Super. 1988) (citation omitted). As such, restitution is
focused on the defendant, and the victim is secondary.10
Second, to the extent Kalkbrenner asks this Court to ignore Pleger or
overrule the case, we cannot do so. See Commonwealth v. Prout, 814
A.2d 693, 695 n.2 (Pa. Super. 2002) (per curiam) (stating Superior Court is
constitutionally bound by prior Superior Court panel decisions). Moreover,
with respect to his retroactivity issue, we note “the general rule in
Pennsylvania is to apply the law in effect at the time of the appellate
decision.” Commonwealth v. Housman, 986 A.2d 822, 840 (Pa. 2009).
Here, Kalkbrenner asks this Court to look back to when the parties signed
the release in 2003 rather than when the trial court imposed the sentence of
restitution in 2012. We decline to so.11 Therefore, we turn our attention to
the trial court’s application of Pleger.
____________________________________________
10
The sentencing judge went to great lengths, both at the sentencing
hearing and the subsequent restitution hearing to determine the appropriate
amount of restitution and to insure there was no duplication based on
amounts paid from The Crime Victims Compensation Fund.
11
Furthermore, we note Section 1106 provides, in relevant part: “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
(Footnote Continued Next Page)
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In Pleger, prior to sentencing, the victim accepted a settlement from
the defendant, through his insurance carrier. At sentencing, the trial court
found the victim signed a general release, relieving the defendant of all
claims. The “court essentially reasoned that, because of the settlement and
release, the court could not consider ordering restitution.” Pleger, 934 A.2d
at 719. On appeal, a panel this Court noted that “[i]t is true that restitution
helps the victim, but this fact is secondary to the reality that restitution is an
aspect of sentencing imposed by a court on an offender in order to facilitate
the administration of criminal justice.” Id. at 720. Moreover, this Court
determined “[t]he victim could no more release [the defendant] from a
potential sentence of restitution than from a potential sentence of
incarceration,” and concluded that “in determining what restitution was to be
imposed as part of [the defendant’s] sentence, the general release and the
settlement amount were irrelevant.” Id. The panel held:
[T]he court was required, pursuant to the aforesaid statutes and
caselaw, to consider fully the request for restitution presented by
the district attorney’s office, to evaluate that request in a
manner consistent with 18 Pa.C.S.A. § 1106 and 42 Pa.C.S.A. §
9721(c), to arrive at the full amount of restitution due, and then
to issue an appropriate order requiring full restitution as an
aspect of [the defendant]’s sentence.
Id. at 720-721.
_______________________
(Footnote Continued)
any restitution ordered for loss previously compensated by an insurance
company to the insurance company.” 18 Pa.C.S. § 1106(c)(1)(i).
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Here, we conclude that, in accordance with Pleger, which we are
bound by, the trial court did not err in failing to apply the release
agreements between the victims and Kalkbrenner when imposing the order
of restitution. See Trial Court Opinion, 11/13/2012, at 7. Accordingly,
Kalkbrenner’s second argument lacks merit.
In his third argument, Kalkbrenner baldly asserts the court erred in
ordering, as part of his sentencing, that he pay for certain costs of
prosecution, specifically, the full price of gasoline and travel expenses of its
witnesses. Kalkbrenner’s Brief at 26. Kalkbrenner states that pursuant to
42 Pa.C.S. § 5903(c), a witness may only be compensated seven cents per
mile. Id. Moreover, he contends Section 5903(c) should be interpreted to
limit the amount a Commonwealth witness may be compensated for travel
expenses. Id.
Initially, we note that 16 P.S. § 1403 governs the Commonwealth’s
ability to recover the expenses of a successful prosecution from a defendant.
It provides:
§ 1403. Expenses incurred by district attorney
All necessary expenses incurred by the district attorney or his
assistants or any office directed by him in the investigation of
crime and the apprehension and prosecution of persons charged
with or suspected of the commission of crime, upon approval
thereof by the district attorney and the court, shall be paid by
the county from the general funds of the county. In any case
where a defendant is convicted and sentenced to pay the costs
of prosecution and trial, the expenses of the district attorney in
connection with such prosecution shall be considered a part of
the costs of the case and be paid by the defendant.
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16 P.S. § 1403.12
Section 5903, upon which Kalkbrenner relies, is limited in scope to “a
witness served with a subpoena to testify before any government unit13
(except the minor judiciary) or before the Philadelphia Municipal Court.” 42
Pa.C.S. § 5903(a). Moreover, it states those applicable witnesses shall be
paid $5.00 per day and “shall be paid mileage at the rate of 7 cent(s) for
each mile circular actually and necessarily travelled between the place
named in the subpoena and the place of residence of the witness.” 42
Pa.C.S. § 5903(b-c).
Kalkbrenner’s argument is flawed for numerous reasons. First, he fails
to explain how Section 5903 interrelates to Section 1403 in determining
costs of prosecution or if it ever applies to judicial proceedings.14 Second,
he does not identify which, if any, witnesses were subpoenaed that would
necessitate review pursuant to Section 5903. Third, he does not point to
which cost in the Commonwealth’s bill of expenses were attributable to
those witnesses. Moreover, as the trial court noted:
____________________________________________
12
“The purpose of the statute is to recoup the costs of trial where a jury
finds the defendant guilty beyond a reasonable doubt[.]” Commonwealth
v. Coder, 415 A.2d 406, 408 (Pa. 1980).
13
The statute does not define “government unit.”
14
This is the first time Kalkbrenner raises the argument concerning the
application of Section 5903. See Pa.R.A.P. 302(a).
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We mention … that [Kalkbrenner] claims as error the costs
imposed on him. He cites as an example of such costs the bill
submitted by Dr. Eric Vey.[15] We note that we previously
reduced the billed amount from Dr. Vey in our Order of Court
dated September 17, 2008, and we see no need to disturb our
ruling in that matter or the other costs allocated to
[Kalkbrenner], as previously set out in our Orders of September
17, 2008[16] and June 18, 2012,[17] respectively.
See Trial Court Opinion, 11/13/2012, at 7. Accordingly, we are not
persuaded by Kalkbrenner’s argument and conclude the issue lacks merit.
In Kalkbrenner’s fourth claim, he contends the court erred in failing to
dismiss his three summary convictions for careless driving, driving at safe
speed, and failure to keep right because the crimes were not filed within 30
days as required by 42 Pa.C.S. § 5553(a). He notes the offenses occurred
on February 10, 2003, and the police criminal complaint was filed past that
time limit on May 1, 2003. Moreover, Kalkbrenner complains the offenses
____________________________________________
15
Kalkbrenner did not identify Dr. Vey in his appellate brief.
16
In the September 17, 2008, order, the court granted certain costs and
declined to assess certain costs as follows: (1) Dr. Vey was entitled to
$2,500.00; (2) Craig Westover was entitled to $250.00 for service of
subpoenas; (3) Dr. Gailey was not entitled to recover a fee; (4) Dr. Woods
was not entitled to recover a fee; (5) all other costs listed remained. See
Order of Court, 9/17/2008, at 1. These adjustments were made at the
request of Kalkbrenner’s counsel at the sentencing hearing. See N.T.,
9/2/2008, at 61, 63-64.
17
In the June 18, 2012, order, the court stated, in pertinent part: (1)
because Kalkbrenner was successful in his appeal at Docket Number 182
WDA 2009, he was entitled to allowable costs, totaling $230.92, pursuant to
Pa.R.A.P. 2741(3), 2742, 2743, and 2771; and (2) the reduction in the billed
amount from Dr. Vey to $2,500.00 remained. See Order of Court,
6/18/2012, at 2.
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should have been dismissed because they were not disposed of within three
years as required by 42 Pa.C.S. § 5553(e).
Section 5553 states, in pertinent part:
(a) General rule. --Except as provided in subsection (b) or (c),
proceedings for summary offenses under Title 75 (relating to
vehicles) must be commenced within 30 days after the
commission of the alleged offense or within 30 days after the
discovery of the commission of the offense or the identity of the
offender, whichever is later, and not thereafter.
…
(e) Disposition of proceedings within three years. --No
proceedings shall be held or action taken pursuant to a summary
offense under Title 75 subsequent to three years after the
commission of the offense.
42 Pa.C.S. § 5553 (a, e).
Here, the trial court found the following:
As we stated in our Opinion of Court dated January 8, 2009,
disposing of [Kalkbrenner]’s Post Sentence Motions for Relief:
… [B]ased upon the law at the time of these offenses,
February 10, 2003, these summary offenses were properly
joined in this case, even though they were filed more than
thirty days after their occurrence. In Commonwealth v.
Kline, the court explained that [t]he Rules of Criminal
Procedure for summary cases contemplate that ordinarily
citations for summary offense will be issued by law
enforcement officers and handed to the defendant at the
time the offense [was] committed. [citation omitted].
However, the rules also state that in cases which involve
both summary offenses and “court cases” (i.e.,
misdemeanor, felony, or murder charges), the summary
offenses, if known at the time, “shall be charged in the
same complaint as the higher offenses and shall be
disposed of as part of the course case.” [citation omitted]
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… In the present case, the Police Criminal Complaint, dated
April 30, 2003, charges [Kalkbrenner] with all the
summary offenses, along with the court cases. All of these
charges were disposed of in the same case. Thus, the
statute of limitations for the summary offense did not
expire.
Commonwealth v. Kalkbrenner at C.R. No. 619-2003, Order and
Opinion of Court, dated January 8, 2009 (quoting
Commonwealth v. Kline, 592 A.2d 730 (Pa. Super. Ct. 1991) at
fn. 1).
We believe this adequately disposes of [Kalkbrenner]’s claim
insofar as he asserts the summary offenses should have been
dismissed for noncompliance [within] the thirty (30) day
requirement.
In a related claim, [Kalkbrenner] also asserts that the
summary offenses necessitate dismissal for they were not fully
disposed of within two years as required by 42 Pa.C.S.A. §
5553(e) (“§ 5553”).11 However, [Kalkbrenner]’s position is
untenable given the fact that this case has been the subject of
prolific motion filings by [Kalkbrenner], as well as frequent
appeals to Superior Court by both the Commonwealth and
[Kalkbrenner] in this protracted case. This case has literally
dragged on for more than nine years since summons were issued
to [Kalkbrenner] on May 1, 2003, for the accident which
occurred on February 10, 2003. Appeals to the Superior Court
over various issues were taken on April 1, 2005,12 February 5,
2009,13 and July 11, 2012.14 Pursuant to Pa.R.A.P. 1701(a),
when an appeal is taken, neither the trial court or other
government unit may proceed further in the matter under appeal
until a decision has been made in the matter appealed of by the
appellate court. [Kalkbrenner] asserts the summary offenses
were not fully disposed of within the statutory timeframe under §
5553, yet [Kalkbrenner] fails to take note of the lengthy
appellate process that, more often than not, was due to appeals
filed on his behalf. Thus, any action this court might have
wanted to take to dispose of the summary offenses was stayed
during the pendency of [Kalkbrenner]’s numerous appeals over
the course of this protracted case pursuant to the Rules of
Appellate Procedure. Thus, we find no merit to [Kalkbrenner]’s
claim in this matter.
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11
The timeframe under 42 Pa.C.S.A. § 5553(e) was
subsequently enlarged to three years, but we deal with the
statutory scheme as it existed at the time of the
commission of the offenses on February 10, 2003.
12
The Superior Court issued its decision on this appeal on
December 29, 2005. Subsequently, the Superior Court
denied a request for reargument or reconsideration filed on
January 10, 2006 by the parties in their Order dated March
10, 2006. This decision was then appealed to the
Supreme Court on August 4, 2006, which was ultimately
denied by Supreme Court Order dated August 24, 2006.
13
This appeal was taken after the trial court imposed
sentence on [Kalkbrenner] by Sentence and Order of Court
dated September 2, 2008, and subsequent Post-Sentence
Motions for Relief filed on September 11, 2008 were
denied. The Superior Court then reversed and remanded
for a new trial by Order dated November 3, 2010. At one
point, the record reflects that the Supreme Court denied a
Petition for Allowance of Appeal in a Per Curiam Order
dated March 16, 2011.
14
This appeal was taken after the jury verdict of guilty on
November 17, 2011, and the subsequent sentencing
imposed by the court on January 6, 2012. Post Sentence
Motions for Relief were filed, as well as Supplemental Post
Sentence Motions, both of which were ultimately denied
and which constitute the reason for the instant appeal.
Trial Court Opinion, 11/13/2012, at 8-9. After reviewing the relevant case
law and the record, we conclude the trial court’s analysis adequately
disposes of this issue and the court did not err in failing to dismiss
Kalkbrenner’s summary convictions. Accordingly, his fourth argument fails.
Lastly, in his supplemental brief, Kalkbrenner asserts “the underlying
appeal is now moot as the two (2) year maximum sentence for the sole
offense the jury convicted [Kalkbrenner] of has been completely served.”
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Supplemental Brief for Kalkbrenner at 4. He relies on Commonwealth v.
Karth, 994 A.2d 606 (Pa. Super. 2010), and Southern Union Company v.
United States, 132 S.Ct. 2344 (U.S. 2012). With respect to Karth, he
states the case “clearly limits the amount of time restitution may be
collected to the statutory maximum of the guilty offense.” Id. Therefore,
he contends that his maximum sentence has been completely served and
the ability to collect has ceased. Id. Kalkbrenner cites to Southern Union
for its holding that the rule of Apprendi v. New Jersey, 530 U.S. 466(2000),18 in which the Sixth Amendment of the United States Constitution
“reserves to juries the determination of any fact, other than the fact of a
prior conviction, that increases a criminal defendant’s maximum potential
sentence,” applies to sentences of criminal fines. Southern Union
Company, 132 S. Ct. at 2348-2349. Kalkbrenner states that costs and
restitution, like fines, are covered under Apprendi “since they are a
‘penalty’ and/or ‘punishment.’” We disagree.
First, we find Kalkbrenner’s reliance on Karth is misplaced as that
case is distinguishable from the present matter. In Karth, restitution was
ordered as a condition of the defendant’s probation. With respect to
whether restitution is imposed as a direct sentence or a condition of
probation, this Court noted:
____________________________________________
18
See also Blakely v. Washington, 542 U.S. 296 (2004).
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When incorporated as part of a defendant’s direct sentence,
restitution is penal in nature and may be imposed without regard
to the defendant’s ability to pay. See 18 Pa.C.S.A. §
1106(c)(1)(i)(court shall consider restitution regardless of the
current financial situation of the defendant). However, when
imposed as a condition of probation, as it was here, its function
is primarily rehabilitative and is intended to assist the defendant
in leading a law-abiding life. 42 Pa.C.S.A. § 9754(b). In this
context, restitution is to be imposed only “in an amount [the
defendant] can afford to pay.” 42 Pa.C.S.A. § 9754(c)(8).
Karth, 994 A.2d at 607. Moreover, the Court opined:
Although we can find no case in which we have been
confronted with this precise issue, the question of whether
restitution payments may extend beyond the expiration of the
statutory maximum sentence on a given offense was addressed
as a tangential matter in Commonwealth v. James, 2001 PA
Super 88, 771 A.2d 33 (Pa. Super. 2001). In James, the matter
on appeal involved the dismissal of a PCRA petition. Our Court’s
opinion, however, discusses at length James’ direct appeal, in
which we had addressed the issue of restitution.
James had been sentenced to prison, followed by
probation, and ordered to pay restitution in the amount of
$1,500 per month, which was later reduced to $50 per week due
to appellant’s limited earning capacity. When James’
probationary period was almost due to expire, the
Commonwealth instituted violation proceedings, claiming that
appellant had failed to satisfy his restitution obligation. The trial
court found appellant to be in violation and sentenced him to an
additional seven years’ probation and ordered him to pay the
balance of his restitution in weekly payments of not less than
$50.
On direct appeal James argued that, because he had
served his prison sentence, completed 10 years of probation and
complied with the weekly payment schedule imposed by the
court, there was no basis for finding a probation violation, even
though the total amount of restitution had not been paid.
In reviewing James’ sentence, the panel determined that
the trial court had not specified whether restitution was a
condition of probation or a component of James’ sentence. From
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the facts and circumstances of the case, the panel concluded
that the restitution was, in and of itself, a component of James’
sentence and not a condition of probation. It therefore
concluded that, despite the expiration of James’ probation, the
trial court had the “continuing power to monitor and enforce
[the] sentence [of restitution]” until paid, as long as “the period
of time during which the offender must pay does not exceed the
maximum imprisonment to which he could have been
sentenced.” James, supra at 36 & n.3 (emphasis added). The
maximum to which James could have been sentenced was 52
years’ imprisonment; thus, the court had the authority to
enforce the restitution order until the expiration of the maximum
possible sentence.
We conclude that, if a court cannot enforce a restitution
sentence past the statutory maximum date, it certainly lacks the
authority to require that restitution imposed merely as a
condition of probation be paid after the expiration of the
statutory maximum date. In the case now before us, Karth was
subject to a statutory maximum of 90 days’ imprisonment.
Thus, at most, he could only be compelled to pay restitution over
the course of those 90 days.
Karth, 994 A.2d at 609-610 (footnote omitted).
We find both Karth and James are distinguishable from the present
matter. Karth is distinct from this case as the main issue concerned the
imposition of restitution in a condition of probation, which is governed by
different provisions than a direct sentence of restitution. James is not
applicable because a prior version of Section 1106(c)(2)(ii) was applied in
that case. As noted in Commonwealth v. Griffiths, 15 A.3d 73 (Pa.
Super. 2010), prior to 1998, Section 1106 permitted a court to “order
restitution in a lump sum, by monthly installments or according to such
other schedule as it deems just, provided that the period of time during
which the offender is ordered to make restitution shall not exceed
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the maximum term of imprisonment to which the offender could have
been sentenced for the crime of which he was convicted.” Id. at 78(emphasis added). Section 1106 was then amended in 1998. See Act No.
121 of 1998 (P.L. 933, enacted December 3, 1998). The amended version
of Section 1106, provides, in relevant part:
(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:
…
(ii) May order restitution in a lump sum, by monthly
installments or according to such other schedule as it
deems just.
18 Pa.C.S. § 1106(c)(2)(ii) (emphasis added). Indeed, “[t]he amended
statute deleted the time limits originally contained in subsection (c)(2)(ii).
Now, an order of restitution is enforceable until paid. 18 Pa.C.S.A. §
1106(c)(2)(ii).” Griffiths, 15 A.3d at 78 (citations omitted).
Turning to the present matter, the DUI incident occurred on February
10, 2003, and Kalkbrenner was sentenced on January 6, 2012. Therefore,
under either date, the amended version is applicable. Accordingly, under
this version of the statute, the court properly retained authority to compel
payment beyond the maximum term of imprisonment and did not err in
doing so.
With regard to Southern Union Company, we also find this case
distinguishable from the present matter as it concerns the imposition of fines
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and not restitution. Kalkbrenner fails to point to any case that has applied
Southern Union Company to restitution. Moreover, our research has not
uncovered any applicable precedent. Accordingly, we decline to explore the
matter because the South Union Company holding is not directly
applicable to restitution orders. Therefore, Kalkbrenner’s final argument
fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/14/2015
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