Commonwealth v. Harner

BROSKY, Judge.

Heather Harner¹ appeals from the judgment of sentence of the trial court following her guilty pleas to two counts of interference with custody of children.² Appellant was sentenced to a twelve-month period of probation and ordered to pay $14,351.48 in restitution to her former husband, John Harner. Her Motion for Modification of Restitution was denied, and she appealed to this court.

Appellant claims on appeal that the trial court erred when it ordered her to pay restitution since (1) “the subject matter of the restitution claim was inappropriate for supporting an order óf restitution”; and, (2) the trial court failed to determine whether appellant possessed the capability to pay restitution. Appellant’s Brief at 9. We vacate the judgment of sentence relating to restitution and remand to the trial court for a hearing and resentencing consistent with this opinion.

Appellant and John Harner obtained a divorce.³ In 1985, Mr. Harner was awarded custody of their two children. Mr. Harner and the children, aged eleven and nine, continued to reside in Dauphin County, Pennsylvania. Appellant relocated to Louisiana. Pursuant to the custody order she periodically travelled , to and briefly remained in Dauphin County in order to spend time with the children. During one such visit in June, 1989, she abducted the children and took them to Louisiana.⁴

The sole transcript in the record provided on appeal is of appellant’s April 16, 1990 guilty plea-sentencing hearing (hereinafter referred to as “the hearing”). The hearing includes a guilty plea colloquy, comments by the prosecutor and defense counsel and the pronouncement of sentence.⁵

Appellant stated at the hearing that, “The state of Louisiana took the kids in their protection because of the abuse issue.” N.T., 4/16/90, at 8. The record does not indicate the nature of the legal proceedings that ensued in Louisiana but the prosecutor stated at the hearing that, “There was a rather lengthy battle that Mr. Harner waged in the Louisiana Courts in an attempt to recover the children. Id. at 2-3. The prosecutor stated that Mr. Harner accumulated $6,800.00 in legal fees for work performed by a law firm.⁶ Id. at 9. The prosecutor also stated that Mr. Harner expended approximately $1,000.00 in legal fees in Pennsylvania ⁷ and that he spent approximately $2,000.00 for “trip expenses[.]” (We assume that these trips were to Louisiana.) Id. The prosecutor also stated that Mr. Harner paid approximately $1,000.00, “to a private investigator who was looking for the children in Louisiana and $800 to another private investigator who was also employed.” Id. The forgoing was the entire testimony regarding Mr. Harner’s expenses that were precipitated by appellant’s crimes.

Although the prosecutor only enumerated $11,600.00 in expenses allegedly incurred by Mr. Harner, he requested and received a sentence. ordering appellant to pay $14,-351.48 in restitution. Appellant did not contest the legitimacy of the dollar amount of the Commonwealth’s request for restitution. Appellant asked the trial court, “Can I not just pay for the legal [fees accumulated by Mr. Harner?]” Id. at 9.

Appellant first claims that the trial court erred in ordering appellant to pay restitution since Mr. Harner’s expenses were not of the type that are recoverable pursuant to an order of restitution. Although not framed as such by appellant, her claim is that the imposition of restitution constituted an illegal sentence.⁸

Our review of the relevant Pennsylvania statutes and caselaw indicates that this is an issue of first impression. Furthermore, our extensive research regarding criminal restitution in at least three other major jurisdictions failed to reveal any cases and statutes significantly related to appellant’s instant claim.

Sentencing is a matter within the sound discretion of the trial court and absent an abuse of discretion we will not disturb a sentence on appeal. Commonwealth v. Semuta, 386 Pa.Super. 254, 562 A.2d 894 (1989).

18 Pa.C.S. § 1106 states, 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 may be sentenced to make restitution in addition to the punishment prescribed therefor.

(c) Authority of sentencing court.—In determining whether to order restitution as part of the sentence or as a condition of probation ..., the court:

(1) Shall consider the extent of injury suffered by the victim and such other matters as it deems appropriate.

(h) Definitions.—____

“Injury to property.” Loss of real or personal property, including negotiable instruments, or decrease in its value, directly resulting from the crime.

“Personal injury.” Actual bodily harm[⁹] ... directly resulting from the crime.

“Property.” Any real or personal property, including currency and negotiable instruments, of the victim.

42 Pa.C.S. § 9721(c) states, “[T]he court may order the defendant to compensate the victim of his [or her] criminal conduct for the damage or injury that he sustained.”

The purpose of restitution is to impress upon the defendant 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. Anderson, 394 Pa.Super. 299, 575 A.2d 639 (1990); Commonwealth v. Balisteri, 329 Pa.Super. 148, 478 A.2d 5 (1984). In other words, the primary purpose of restitution is the rehabilitation of the defendant. Commonwealth v. Torres, 396 Pa.Super. 573, 579 A.2d 398 (1990); Commonwealth v. Cannon, 387 Pa.Super. 12, 563 A.2d 918 (1989). An additional purpose of restitution is to provide the complainant with a measure of redress. Commonwealth v. Torres, supra; Commonwealth v. Melnyk, 378 Pa.Super. 42, 548 A.2d 266 (1988). “Restitution does not enable a victim to make a claim for damages in a criminal trial.” Commonwealth v. Cannon, supra, 387 Pa.Superior Ct. at 26, 563 A.2d at 925. Although restitution aids the victim, its primary purpose is still the rehabilitation of the defendant. Id.

Although current Pennsylvania caselaw does not contain a specific method of analysis for determining whether a victim’s property “has been stolen, converted or otherwise unlawfully obtained, or its value substantially decreased as a direct result of the crime[,]” 18 Pa.C.S. § 1106(a), this court, in dicta, has offered some guidance in Commonwealth v. Penrod, 396 Pa.Super. 221, 578 A.2d 486 (1990). The defendant in that case caused a serious automobile accident in which the victim’s automobile was demolished. Subsequent to the accident, an unknown third party stole audiotapes from the victim’s disabled automobile. Our court stated that, “Given this ‘but for’ causation and the proximateness in time from the accident to the theft, we would find no abuse of discretion in the trial court’s restitution order.” Id., 396 Pa.Superior Ct. at 229, n. 1, 578 A.2d at 490, n. 1. Although the restitution issue was found to be waived in Penrod, our court, in dicta, would have affirmed the restitution order directing the defendant to compensate the victim for the loss of the audiotapes.

“The settled law of this Commonwealth is that attorneys’ fees are recoverable from an adverse party to a cause only when provided for by statute, or when clearly agreed to by the parties.” Dept. of Transp. v. Manor Mines, Inc., 523 Pa. 112, 122, 565 A.2d 428, 433 (1989); Chatham Communications, Inc. v. General Press Corporation, 463 Pa. 292, 344 A.2d 837 (1975). In Commonwealth v. Angelo, 18 Pa.D. & C.3d 795 (1981), the Monroe County Court of Common Pleas, pursuant to Chatham Communications, supra, declined to award attorneys’ fees as part of the restitution portion of a sentence.

Pursuant to Dept. of Transp. v. Manor Mines, Inc., supra, we find that the trial court erred in ordering appellant to make restitution for the attorneys’ fees incurred by Mr. Harner. There is no statute that provided for the payment of attorneys’ fees in the instant situation, and Mr. Harner and appellant did not agree to reimbursement for said fees.¹⁰

We also find that the trial court had authority to order appellant to make restitution for Mr. Harner’s “trip expenses” and private investigator fees.¹¹ The value of Mr. Harner’s assets were substantially decreased as a direct result of appellant’s abduction of his children. He was compelled to expend sums of money in order to regain possession of his children. We believe that the “but for” causation analysis mentioned in dicta in Commonwealth v. Penrod, supra, is the proper analysis to be employed when a court is determining whether a victim suffered property loss as a direct result of a defendant’s crime. In the instant case, Mr. Harner’s assets (cash, or property that had to be sold in order to obtain cash) would not have been substantially decreased “but for” appellant’s actions in abducting the children and secreting them in Louisiana. Hence, the instant factual situation is one in which a sentencing court can properly impose restitution.

We now turn to appellant’s second issue. She avers that the trial court failed to determine whether she possessed the capability to pay restitution.¹²

Since an order of restitution is a sentence, whether it is imposed as a direct sentence or as a condition of probation or parole, it must be supported by the record. Among the things the sentencing court must consider on the record are: the extent of the injury suffered, see 18 Pa.C.S. § 1106(c)(1); the fact that the defendant’s action caused the injury and that he will be able to pay for it, and the type of payment—lump sum or installment—that will best serve the needs of the victim and the capabilities of the defendant. See 18 Pa.C.S. § 1106(c)(1).

Commonwealth v. Torres, supra, 396 Pa.Superior Ct. at 580, 579 A.2d at 400.

[Restitution is within the discretion of the sentencing court but must be supported by the record, and the court must determine the loss or damages resulting from the defendant’s conduct, the amount of compensation the defendant can afford to pay and how such amount shall be paid. An award for restitution should not be speculative or excessive. There is no requirement that the reasons for ordering restitution be set forth at sentencing. [Citations omitted].

Commonwealth v. McLaughlin, 393 Pa.Super. 277, 292, 574 A.2d 610, 617 (1990).

The trial court in the instant case failed to comply with the aforementioned relevant statutory and case law. First, there is no indication in the record that the trial court considered appellant’s ability to pay restitution. We must therefore remand to the trial court for a hearing to determine appellant’s ability to pay.

Secondly, the trial court did not adequately determine the amount of expenses incurred by Mr. Harner.¹³ It relied upon the prosecutor’s statement that Mr. Harner spent approximately $2,000.00 for “trip expenses.” N.T., 4/16/90, at 9. We are not privy to the location of these trips or the justification for the $2,000.00 figure. The trial court also relied upon the prosecutor’s statement that Mr. Harner paid approximately $1,000.00, “to a private investigator who was looking for the children in Louisiana and $800 to another private investigator who was also employed.” Id. The record does not indicate the location of or type of work performed by the latter private investigator.

Third, the trial court ordered restitution in an amount that was several thousand dollars higher than the list of expenditures enumerated by the prosecutor. The record does not indicate the trial court’s rationale for the higher amount. We therefore also remand for a determination of the nature and amount of expenditures incurred by Mr. Harner.

Once the trial court determines appellant’s ability to pay restitution and the nature and amount of expenditures incurred by Mr. Harner it may resentence appellant regarding restitution.¹⁴

Judgment of sentence relating to restitution is vacated. Case remanded for hearing and resentencing consistent with this opinion. Jurisdiction relinquished.

JOHNSON, J., files a concurring and dissenting opinion.

1 . Appellant has remarried since the filing of the instant criminal charges against her and her present name is Heather Williamson.

2 . 18 Pa.C.S. § 2904(a).

3 . The record does not indicate the date of the divorce.

4 . Appellant averred at her guilty plea that she believed that the children were being abused by Mr. Harner and that is why she abducted them.

5 . Although appellant made two brief comments during the sentencing phase of the hearing there was no other testimony by any party.

6 . The State in which these services were performed is not revealed to us.

7 . We are unaware of what type of legal services were provided by any of the attorneys.

8 . A claim that the sentence imposed is illegal is essentially a claim that the trial court did not possess jurisdiction to impose such a sentence. Commonwealth v. Cannon, 387 Pa.Super. 12, 563 A.2d 918 (1989).

9 . "Actual bodily harm” within the meaning of 18 Pa.C.S. § 1106 includes actual emotional or mental disturbances, but it does not include pain and suffering. Commonwealth v. Cannon, supra.

10 . Although appellant offered at sentencing to pay Mr. Harner’s attorneys’ fees, this was only after restitution had already been ordered. Therefore, there was no prior agreement between the parties regarding attorneys’ fees.

11 . We will explain in issue number two why the trial court generally had authority to order restitution for these expenses but improperly issued such an order in the instant case.

12 . Although appellant did not raise this claim at sentencing or in her Motion for Modification of Restitution the claim is not waived. We held in Commonwealth v. Balisteri, supra, that an order of restitution which was not supported by the record constituted an illegal sentence. "The illegality of a sentence of restitution is not a waivable issue____ An illegal sentence can be corrected at any time. It is not waived by a failure to file a petition to modify the sentence.” Commonwealth v. Reed, 374 Pa.Super. 510, 514-15, 543 A.2d 587, 589 (1988). Since appellant is challenging the legality of her sentence the issue is not waived and we will address it.

13 . We are only focusing on the “trip expenses” and private investigator fees since we have already determined that the trial court erred in awarding attorneys' fees to Mr. Harner.

14 . We are not disturbing appellant’s twelve-month sentence of probation.