Com. v. Davis, R.

J-S31007-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RONEESE DAVIS :
:
Appellant : No. 1048 WDA 2018
Appeal from the Judgment of Sentence Entered June 21, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0011185-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BREONNA LASHAE SWEENEY :
:
Appellant : No. 1115 WDA 2018
Appeal from the Judgment of Sentence Entered March 12, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0011186-2017
BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY OLSON, J.: FILED AUGUST 29, 2019
Appellants, Roneese Davis (Davis) and Breonna Lashae Sweeney
(Sweeney) (collectively, Appellants), appeal from the judgments of sentence
entered on March 12, 2018, as made final by the entry of restitution orders
on June 21, 2018, following their guilty pleas to simple assault, disorderly
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conduct, criminal mischief, and harassment.1 For the reasons that follow, we
are constrained to vacate and remand for resentencing.
The trial court summarized the facts and procedural history of this case
as follows:
On March 12, 2018, Appellants plead [sic] guilty to the above
referenced charges and were sentenced in accordance with a plea
agreement to two (2) years of probation [for] [s]imple [a]ssault,
followed by a consecutive one (1) year period of probation for
[d]isorderly [c]onduct. The facts, which were stipulated to at the
guilty plea[,] are as follows:
On May 20, 2017, police responded to an assault in-progress
on a Port Authority bus [in Pittsburgh, Pennsylvania]. The
officer observed the victim in the rear of the bus with visible
facial injuries, including blood inside and around her mouth
and nose. The victim complained of head and facial pain,
vision problems, and reported that her eyeglasses were
broken during the assault. Video surveillance footage
captured the assault and corroborated the victim and
witness accounts that Appellants physically attacked the
victim by repeatedly punching her about the face. At
sentencing, the Commonwealth submitted a restitution
order for $5,383.88 representing the costs associated with
some of the victim’s medical treatment. Appellant[s]
requested a restitution hearing. The hearing took place on
April 13, 2018, wherein [Appellants] argued that the
medical records were incomplete and that the
Commonwealth failed to establish direct causation between
the assault and the [victim’s] detached retina diagnosis.
The [trial c]ourt became aware during the hearing that the
Commonwealth had received additional medical records,
prompting a continuation of the hearing. When the parties
reconvened before [the trial c]ourt on May 8, 2018,
Appellants reiterated their argument regarding lack of direct
causation and also challenged the authority of the [trial
c]ourt to order restitution to Equian[, a third-party collection
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1 18 Pa.C.S.A. §§ 2701(a)(1), 5503(a)(4), 3304(a)(4), and 2709(a)(1),
respectively.
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agency]. Citing 18 P.S. § 11.10[3 and 18 Pa.C.S.A. § 1106],
Appellants argued that Equian, a third[-]party collection
agency seeking restitution on behalf of the [victim’s]
medical provider, UPMC, is not statutorily authorized to
receive payment. Briefs were ordered [and received] on the
issue of Equian’s eligibility and argument took place on June
21, 2018. After argument, [the trial c]ourt entered a
restitution order[, docketed in both cases,] in the amount of
$5,383.88 payable [in equal parts by Davis and Sweeney]
to Equian, finding that payment to a collection agency
designated by an entity entitled to receive restitution,
achieves the legislative purpose of the statute:
rehabilitation and punishment. Post-sentence motions
challenging the legality of the restitution order were denied
and timely [n]otices of [a]ppeal [and court-ordered concise
statements of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b)] were filed by both Appellants raising
identical issues. [The trial court issued an opinion pursuant
to Pa.R.A.P. 1925(a) on August 31, 2018.]
Trial Court Opinion, 8/31/2018, at 2-4 (footnotes omitted).
On appeal, Davis raises the following issues for our review:
1. Was the trial court’s sentence illegal in ordering $5,383.88 in
restitution to Equian, a debt collector, under the restitution
statute, 18 Pa.C.S.[A.] § 1106, when Equian was not an entity
listed under the aforementioned restitution statute?
2. Was the trial court’s sentence illegal because the record
supports no causal connection between the ordered restitution
for the injury complained of, a detached retina, and the simple
assault to which [] Davis pleaded guilty?
Davis’ Brief, at 3 (numbers supplied).
On appeal, Sweeney raises the following issues for our review:
I. Did the trial court impose an illegal sentence in ordering
restitution to Equian, a debt collector, in the amount of
$5,383.88 where (1) Equian is not an entity that is
statutorily entitled to receive restitution under 18
Pa.C.S.[A.] § 1106 (relating to restitution for injuries to
person or property), and (2) the record does not support a
causal connection between the amount of restitution
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ordered for personal injury to the complaining witness –
namely a detached retina – and the simple assault to which
[] Sweeney pled guilty?
Sweeney’s Brief at 7 (complete capitalization omitted).
First, Appellants contend that the trial court erred by ordering Equian, a
third-party debt-collector, to receive restitution under 18 Pa.C.S.A. § 1106,
because a debt-collector is not a “victim” as statutorily defined and “the
General Assembly had not otherwise manifested an intent to include debt
collectors as victims entitled to restitution.” Sweeney’s Brief at 31; see also
Davis’ Brief at 15 (“Equian is neither a victim nor is it an entity that reimbursed
[the victim] directly or indirectly.”) Next, Appellants argue that restitution is
only proper when there is a direct causal connection between the victim and
the criminal conduct of a defendant and that the medical records as submitted
by the Commonwealth failed to connect Appellants’ assaultive conduct directly
with the victim’s detached retina. Sweeney’s Brief at 39-41; Davis’ Brief at
16-17. As explained below, however, because the trial court erred as a
matter of law by failing to determine the amount of restitution at the original
time of sentencing, we are constrained to vacate the restitution orders and
underlying judgments of sentence and remand the case for resentencing.
This Court recently reiterated:
[This Court may sua sponte review an order imposing restitution,
entered after the separate entry of judgment of sentence, as it
implicates the legality of sentence]. See Commonwealth v.
Mariani, 869 A.2d 484 (Pa. Super. 2005) (explaining judgment
of sentence including open restitution “to be determined at later
date” is ipso facto illegal); Commonwealth v. Deshong, 850
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A.2d 712, 713 (Pa. Super. 2004) (stating timeliness of court's
imposition of restitution concerns legality of sentence). See
also Commonwealth v. Oree, 911 A.2d 169, 172 (Pa. Super.
2006), appeal denied, 918 A.2d 744 (Pa. 2007) (maintaining
legality of sentence claims cannot be waived, given proper
jurisdiction, and Superior Court can review illegal sentences sua
sponte).
Issues concerning a court's statutory authority to impose
restitution implicate the legality of the
sentence. Commonwealth v. Smith, 956 A.2d 1029 (Pa. Super.
2008) (en banc), appeal denied, 989 A.2d 917 (Pa. 2010). “Issues
relating to the legality of a sentence are questions of
law....” Commonwealth v. Diamond, 945 A.2d 252, 256 (Pa.
Super. 2008), appeal denied, 955 A.2d 356 (Pa. 2008). When the
legality of a sentence is at issue, our “standard of review over such
questions is de novo and our scope of review is plenary.” Id. “If
no statutory authorization exists for a particular sentence, that
sentence is illegal and subject to correction. An illegal sentence
must be vacated....” Commonwealth v. Pombo, 26 A.3d 1155,
1157 (Pa. Super. 2011) (quoting Commonwealth v. Bowers, 25
A.3d 349, 352 (Pa. Super. 2011), appeal denied, 51 A.3d 837 (Pa.
2012)).
In criminal proceedings, an order of restitution is a sentence (even
when imposed as a condition of probation); it is not an award of
damages; “recompense to the victim is secondary.” Mariani,
supra at 486 (quoting Commonwealth v. Wright, 722 A.2d
157, 160 (Pa. Super. 1998)). The objectives of restitution differ
from the objectives of awarding damages; although the amounts
are related, they “need not be coterminous.” Id. “[T]he primary
purpose of restitution is rehabilitation of the offender by
impressing upon [her] that [her] criminal conduct caused the
victim's loss or personal injury and that it is [her] responsibility to
repair the loss or injury as far as possible.” Commonwealth v.
Solomon, 25 A.3d 380, 389 (Pa. Super. 2011), appeal denied, 40
A.3d 1236 (Pa. 2012) (quoting Mariani, supra at 486).
Commonwealth v. Ramos, 197 A.3d 766, 768–769 (Pa. Super. 2018).
The imposition of restitution is statutorily set forth at 18 Pa.C.S.A.
§ 1106, which provides in pertinent part:
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§ 1106. Restitution for injuries to person or property
(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.
***
(c) Mandatory restitution.—
(1) The court shall order full restitution:
***
(2) At the time of sentencing the court shall specify
the amount and method of restitution. In determining
the amount and method of restitution, the court:
(i) Shall consider the extent of injury suffered by the
victim, the victim's request for restitution as presented
to the district attorney in accordance with paragraph (4)
and such other matters as it deems appropriate.
(ii) May order restitution in a lump sum, by monthly
installments or according to such other schedule as it
deems just.
***
(3) The court may, at any time or upon the
recommendation of the district attorney that is based on
information received from the victim and the probation
section of the county or other agent designated by the
county commissioners of the county with the approval of the
president judge to collect restitution, alter or amend any
order of restitution made pursuant to paragraph (2),
provided, however, that the court states its reasons and
conclusions as a matter of record for any change or
amendment to any previous order.
(4)(i) It 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. This recommendation shall be
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based upon information solicited by the district attorney and
received from the victim.
18 Pa.C.S.A. § 1106(a), (c)(1)-(4)(i) (emphasis added); see also
Commonwealth v. Dinoia, 801 A.2d 1254, 1257 (Pa. Super. 2002) (Section
1106(c)(2) includes “the requirement that if restitution is ordered, the amount
must be determined at the time of sentencing....”) (emphasis in original).
We have stated:
[Section 1106] place[s] upon the Commonwealth the requirement
that it provide the court with its recommendation of the restitution
amount at or prior to the time of sentencing. Although the statute
provides for amendment or modification of restitution “at any
time,” 18 Pa.C.S.A. § 1106(c)(3), the modification refers to an
order “made pursuant to paragraph (2)....” Thus, the statute
mandates an initial determination of the amount of restitution at
sentencing. This provides the defendant with certainty as to his
sentence, and at the same time allows for subsequent
modification, if necessary.
[Dinoia, 801 A.2d at 1257] (internal citations and footnote
omitted). See also Smith, supra (holding court cannot impose
generalized, open-ended restitution order at sentencing
and then “work out the details” and amounts at later date;
order of restitution “to be determined later” is ipso facto illegal);
Mariani, supra (explaining Section 1106(c) has two, inextricable
components: (1) time at which restitution sentence must be
imposed, i.e., at sentencing hearing, and (2) specific nature of
such sentence, i.e., definite as to amount and method of
payment). Thus, an order entered after the delayed restitution
proceeding is not what renders the sentence illegal; it is the
court's order at the initial sentencing, postponing the imposition
of restitution until a later date, that fails in both respects to meet
the criteria of the restitution statute and taints the entire
sentence. Id. at 486; 18 Pa.C.S.A. § 1106.
As long as the sentencing court sets some amount and method
of restitution at the initial sentencing, the court can later modify
that order, but only if the requirements of Section 1106(c)(3) are
met. Commonwealth v. Dietrich, 970 A.2d 1131 (Pa. 2009).
This authority to modify restitution takes into account that the full
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amount of restitution might be indeterminable before sentencing
under Pa.R.Crim.P. 704. Id.Ramos, 197 A.3d at 770 (footnote omitted; emphasis added).
Before Appellants entered their guilty pleas at the March 12, 2012
hearing, the Commonwealth averred that the victim was entitled to restitution
for a damaged pair of eyeglasses totaling $149.00, an ambulance ride and the
first visit to the hospital that were paid for by the Victim’s Compensation
Assistance Program, and the victim’s subsequent surgeries and medical bills
totaling $5,383.88. See N.T., 3/12/2018, at 15-16. Counsel for Appellants
requested a “restitution hearing” regarding the medical bills. Id. at 15.
Appellants then pled guilty and proceeded directly to sentencing. Id. at 16-
19. The victim gave an impact statement to the trial court. Id. at 20-21.
The trial court then asked the Commonwealth “how long [it] would take to get
the restitution information together[.]” Id. at 21. The Commonwealth
responded that it had “all of the restitution information present” and was ready
to proceed on restitution. Id. However, counsel for Davis stated that she
wanted to “go through the itemized bill for the hospital … to make sure [it
reflected] the correct amount.” Id. at 22. The trial court sentenced both
Appellants to probation, but “[left] the question of restitution open for a period
of 30 days for a subsequent proceeding[.]” Id. at 24. When solicited for
questions, Sweeney asked the trial court when the restitution would go into
effect. Id. at 26. The trial court stated:
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We haven’t decided that yet. We have to have another hearing
about that. […W]e will bring you back within 30 days on some
Friday that I’m available. And I will listen to restitution testimony
and I will make whatever findings that I find are merited.
Id. at 26. At the end of the sentencing proceeding, the Commonwealth
asked counsel for Appellants whether it was necessary to bring the victim back
for the additional proceeding to testify about her broken glasses. Id. at 29.
Counsel for Appellants claimed it was not necessary, implicitly conceding
restitution was warranted for the victim’s property loss. Id.
Thereafter, on March 12, 2018, the trial court entered sentencing orders
for both Appellants. The original sentencing orders neither directed payment
of restitution nor specified any amount for repayment. While the trial court
included a “taxing bill” that included an “itemized account of fines, costs, fees,
and restitution,” no restitution was listed.
The trial court then held restitution hearings on April 13, 2018, May 8,
2018, and June 21, 2018. On June 21, 2018, the trial court entered the orders
complained of on appeal, captioned “RESTITUION ORDERED – ORDER OF
SENTENCE.” In those orders, the trial court ordered restitution in a lump sum
amount of $6,829.59 to be paid jointly and severally by Appellants. This
restitution was imposed on Appellants’ convictions for simple assault.
Attached to each of the June 21, 2018 orders is a document entitled
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“RESTITUTION COURT ORDER,” which was dated April 13, 2018.2 In the April
13, 2018 orders, the restitution owed by each Appellant is separated into three
categories: $149.00 to the victim for her broken eyeglasses,3 $1,296.71 to
the Victims Compensation Assistance Program for the victim’s initial medical
treatment, and $5,383.88 to Equian, a third-party debt collector, for the
victim’s subsequent surgeries and hospitalization. Pursuant to Section
1106(c)(2), however, the trial court did not have the authority to leave the
amount and method of payment for restitution open for a decision at a later
date. As the record makes clear, the trial court intended restitution as an
integral part of the sentencing scheme on March 12, 2018, but waited until
later to impose it. As we concluded in Ramos:
Notwithstanding the statutory language [of Section 1106] and
case law requiring imposition of some amount of restitution and a
method of payment at the time of sentencing, we continue to see
courts make a general order of restitution as part of the sentence
but postpone the actual specifics to a later date. This practice is
contrary to law. In other words, a sentence intended to include
restitution, which is initially entered without a definite amount and
a method of payment is illegal and must be vacated in its entirety.
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2 The “restitution orders” are dated and docketed April 13, 2018, which
coincides with the first hearing on restitution. However, the trial court then
held two additional hearings before entering the June 21, 2018 orders that
relied upon the attached April 13, 2018 orders.
3 In addition, we note that the trial court erred by attributing the $149.00 for
the victim’s eyeglasses to Appellants’ simple assault convictions. As the
Commonwealth noted, it sought $149.00 for damage to the victim’s personal
property as a result of criminal mischief. See N.T., 3/12/2018, at 16. As
such, we conclude that the trial court erred by lumping the $149.00 into the
total restitution amount ordered and linking it to Appellant’s simple assault
convictions.
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Ramos, 197 A.3d at 770–771. Accordingly, we vacate the orders pertaining
to restitution entered on April 13, 2018 and June 21, 2018, as well as the
earlier March 12, 2018 sentencing orders for both Appellants and remand for
resentencing. Due to our disposition, we decline to address Appellants’ issues
regarding causation and whether restitution is payable to a debt-collector.
These issues are subject to change at resentencing.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/29/2019
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