Com. v. Scott, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANTE LAMONT SCOTT :
:
Appellant : No. 1702 MDA 2019
Appeal from the Judgment of Sentence Entered October 9, 2019
In the Court of Common Pleas of Mifflin County
Criminal Division at No(s): CP-44-CR-0000196-2019
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED JULY 21, 2020
Dante Lamont Scott appeals from the judgment of sentence imposed on
September 3, 2019, in the Mifflin County Court of Common Pleas, and as
modified on October 9, 2019. On the former date, Scott entered a global plea
agreement at three criminal dockets to one count of burglary.1 The court
sentenced him to a term of five to ten years’ incarceration with credit for time
served, plus fines and restitution in the amount of $2,894.29. On appeal, Scott
challenges the legality and amount of restitution imposed. After careful
consideration, we vacate the portion of the judgment of sentence requiring
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* Former Justice specially assigned to the Superior Court.
1 See 18 Pa.C.S. § 3502(a)(1)(ii).
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him to pay restitution to the Estate of Corkins, but we affirm in all other
respects.
On March 4, 2019, holding a knife and what appeared to be a gun, Scott
barged into a home, uninvited, and terrorized several victims. He threatened
to kill the victims as well as himself. During the investigation, the officers
learned of an incident that occurred earlier that day, wherein Scott assaulted
two females at his home, holding a knife to both of their throats and
threatening to rape one of the women. Scott was charged with numerous
offenses related to the two incidents at Criminal Docket No. CP-44-CR-
0000196-2019 (“Docket No. 196”).
Scott had previously been charged with four counts each of possession
of a firearm prohibited and receiving stolen property at Criminal Docket No.
CP-44-CR-0000588-2018 (“Docket No. 588”) on March 13, 2018, for an
unrelated incident.2 Additionally, he was charged with one count of criminal
use of a communication facility3 at Criminal Docket No. CP-44-CR-0000197-
2019 (“Docket No. 197”) on April 15, 2019, which was also for a separate
incident.
On September 3, 2019, Scott pled guilty to one count of burglary at
Docket No. 196 as part of a global negotiated plea agreement to resolve all
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2 See 18 Pa.C.S. §§ 6105(a)(1) and 3925(a), respectively.
3 See 18 Pa.C.S. § 7512.
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three criminal dockets in exchange for a sentence of not less than five years
nor more than ten years and that the remaining charges at all three dockets
be nolle prossed.
The court accepted the plea agreement and sentenced Scott in
accordance with those terms. The court also ordered that Scott to pay the
costs of prosecution (a $500.00 fine), determined that he was eligible for a
recidivism risk reduction incentive (RRRI) minimum sentence of 50 months,
awarded him credit for time previously served, and imposed restitution in the
amount of $2,894.29. The restitution amount was allocated as follows: (1)
$344.29 to V-CAP/Victim #6 at Docket No. 196-2019; and (2) $2,550.00 to
the Estate of Corkins at Docket No. 588-2018.4
Scott subsequently filed a post-sentence motion challenging the
restitution, and a hearing was held on September 24, 2019. The court
summarized the evidence presented at the hearing as follows:
Garth Corkins, the representative of the victim’s estate, presented
a list of stolen items along with his opinion as to the value of each
item. Testimony provided [Scott] stole a German Mauser that the
victim’s husband brought home from a concentration camp in
Dachau after World War II. Garth Corkins … was unable to
appraise the guns that were taken from his Mother, the victim,
because they were stolen. Therefore, Mr. Corkins looked at gun
sites on the internet to find comparable makes and models of the
guns that were stolen and attribute a value to those guns based
on the used condition and pictures. Based on this research, Mr.
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4 Scott’s counsel questioned the amount at the time of sentencing and
reserved the right to raise the issue in a post-sentence motion. See N.T.,
9/3/2019, at 12-13.
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Corkins valued the German Mauser at $1,500.00 and two .22 High
Standard Sporks Kinds at $300.00 apiece.
Trial Court Opinion, 11/15/2019, at 1-2.
Based on this evidence, the court entered an order on September 26,
2019,5 modifying the restitution at Docket No. 196-2019 as follows:
Restitution for the unknown make handgun has an
unfounded value.
The value of the two (2) .22 High Standard Sport Kings are
set at $300.00 (THREE HUNDRED DOLLARS) a piece for a total of
$600.00 (SIX HUNDRED DOLLARS).
The value of the German Mauser is set at $1,500.00 (ONE
THOUSAND FIVE HUNDRED DOLLARS).
THEREFORE, Restitution in the within action is set at
$2,100.00 (TWO THOUSAND ONE HUNDRED DOLLARS).
Order, 9/26/2019.
Thereafter, on October 9, 2019, the court entered a modified sentence,6
which provided, in relevant part:
[A]fter hearing held September 24, 2019, the Court MODIFIES the
sentence entered the 3rd day of September, 2019, as follows:
[Scott] having entered a plea of guilty to the charge of burglary,
and the court having an adequate basis upon which to enter
sentence, the court enters the following:
[Scott] … shall make restitution in the amount of $2,894.29[.]
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5 The order was dated September 24th, but timestamped two days later.
6 The order was dated October 8th, but timestamped on the following day.
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Modified Sentence, 10/9/2019.7 This timely appeal followed.8
As a prefatory matter, we note Scott’s appellate brief was filed late,
despite having been granted an extension of time. See Order, 1/21/2020. The
order explicitly stated: “Appellant shall file his brief on or before February 28,
2020.” Id. Subsequently, Scott filed his appellate brief on March 9, 2020.
Pennsylvania Rule of Appellate Procedure 2188 provides, in relevant
part, that an appellee “may move for dismissal of the matter” when an
appellant fails to file his brief in a timely manner. Pa.R.A.P. 2188. Here,
however, the Commonwealth did not seek dismissal of the appeal or otherwise
protest Scott’s tardy filing. Absent an objection from the appellee, a panel of
this Court has previously overlooked an appellant’s “non-compliance with Rule
2188 pursuant to our discretion under Pa.R.A.P. 105(a),” and addressed the
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7 In what appears to be scrivener’s error, Scott’s modified sentence did not
reflect the new amount allocated in the September 24, 2019, restitution order
to the Estate of Corkins, $2,100.00, which would have decreased the total
restitution amount to $2,444.29. Rather, the court restated the original
restitution amount set forth in the September 3rd sentence, $2,894.29, which,
based on the record and without further explanation from the court, appears
to include a restitution amount of $2,550.00 for the estate victim. See also
Trial Court Opinion, 11/15/2019, at 2 (“As such, the [court finds] the
Commonwealth provided a sufficient factual basis on the record to support its
request for restitution in the amount of $2,100.00.”).
8 On October 21, 2019, the court directed counsel to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Scott
complied with the court’s directive, and filed a concise statement on November
13, 2019. The trial court filed a Rule 1925(a) opinion two days later.
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substantive claims on appeal. AmerisourceBergen Corp. v. Doe, 81 A.3d
921, 923 n.1 (Pa. Super. 2013). We will do the same in the present matter.
In his first argument, Scott asserts that the “order imposing restitution
in the amount of $2,100.00 was illegal, as there was no causal connection
between the restitution imposed for the alleged victim’s stolen property and
the crime for which [Scott] was held criminally responsible.” Appellant’s Brief,
at 15. He cites to Commonwealth v. Yahya Asaad Muhammed, 219 A.3d
1207, 1211 (Pa. Super. 2019). In the alternative, Scott complains that if one
were to assume that paying restitution on nolle prossed charges was part of
his plea agreement, the agreement cannot be enforced because according to
Commonwealth v. Rivera, 154 A.3d 370 (Pa. Super. 2017), a “defendant
cannot agree to an illegal sentence, so the fact that the illegality was a term
of his plea bargain is of no legal significance.” Id., at 381.9
As Scott’s claim concerns the legality of his sentence, see Muhammed,
219 A.3d at 1212, our standard of review regarding the matter is as follows:
It is well settled that a challenge to the legality of a sentence
raises a question of law. In reviewing this type of claim, our
standard of review is de novo and our scope of review is plenary.
An illegal sentence must be vacated[.] Further, we have explained
that a criminal defendant cannot agree to an illegal sentence, so
the fact that the illegality was a term of his plea bargain is of no
legal significance. Moreover, a challenge to the legality of the
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9Scott states the restitution imposed to reimburse V-CAP in the amount of
$344.29 is not in dispute in the present matter. See Appellant’s Brief, at 12.
Therefore, we need not address it further.
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sentence can never be waived and may be raised by this Court
sua sponte.
Id., at 1211 (citations, quotations, and quotation marks omitted).10
“The [Pennsylvania] Crimes Code, in 18 Pa.C.S. § 1106, controls
restitution as a direct sentence.” Commonwealth v. Deshong, 850 A.2d
712, 715 (Pa. Super. 2004). Section 1106 provides, in relevant part: “Upon
conviction for any crime wherein: (1) property of a victim 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)(1)
(emphasis added). Due to the “directly resulting from the crime” language,
this Court has previously held that “restitution is proper 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). “[T]he
courts utilize a ‘but for’ test in calculating those damages which occurred as a
direct result of the crime.” Commonwealth v. Oree, 911 A.2d 169, 174 (Pa.
Super. 2006). Lastly, “[s]ince 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.” Commonwealth v. Hainsey, 550 A.2d
207, 213 (Pa. Super. 1998) (quotation and internal citations omitted).
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10 Based on our standard of review, the Commonwealth’s argument that Scott
waived this issue for appellate review purposes because he failed to raise the
claim at sentencing and at the hearing on his post-sentence motions is
unavailing. See Appellee’s Brief, at 4.
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While not directly on point with the facts of the present case, we find
Commonwealth v. Zrncic, 167 A.3d 149 (Pa. Super. 2017) to be instructive.
In Zrncic, the defendant engaged an unlawful sexual relationship with a minor
female. As part of the investigation, the police seized the victim’s laptop
computer, which contained evidence that the defendant committed the
offense of unlawful contact with a minor. The defendant subsequently pled
guilty to aggravated indecent assault, and the Commonwealth nolle prossed
an unlawful contact with a minor charge. The court ordered the defendant to
pay the victim’s mother for the laptop, despite the fact that the computer only
contained evidence regarding the unlawful contact with a minor charge. The
issue on appeal was whether the court “may properly impose restitution for
the laptop where the loss claimed flows from crimes other than the crime to
which [the defendant] pled guilty.” Id., at 152.
A panel of this Court opined, “Section 1106 requires a ‘direct nexus’
between the loss claimed and the crime ‘for which Appellant was convicted[.]’”
Id., at 152-153 (emphasis omitted), quoting Commonwealth v. Barger,
956 A.2d 458, 465 (Pa. Super. 2008) (en banc). The Zrncic Court concluded
that because the defendant was not convicted of unlawful contact with a
minor, the court could not impose restitution for the laptop since the device
did not contain any evidence concerning the crime to which he pled guilty –
aggravated indecent assault.
Furthermore, the Zrncic Court stated:
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While the trial court acknowledges that the Commonwealth nolle
prossed the charge of Unlawful Contact with a Minor, the trial
court argues that [the defendant] has “already benefitted greatly
from his plea bargain” and “should not now benefit a second time
by avoiding paying restitution for his actions[.]”
However much we may sympathize with this position, the
legislature does not authorize a trial court to impose restitution
based only on the trial court’s sympathies for the victim. Rather,
Section 1106 requires a “direct nexus” between the loss claimed
and the crime “for which Appellant was convicted[.]”
Nor are we persuaded by the trial court’s conclusion that a “direct
causal connection” exists between the loss of the laptop and the
charge of aggravated indecent assault because “[the defendant]
was initially charged with [u]nlawful [c]ontact with a [m]inor, and
but for his plea agreement he would still have been faced with that
charge[.]” Being “faced with [a] charge” is insufficient to justify
an award of restitution, and the trial court may not award
restitution based on its conjecture that a jury would have found
[the defendant] guilty of the charge had the case gone to trial.
Whatever may have happened in the instant case in the absence
of a plea agreement, [the defendant] was not convicted of
unlawful contact with a minor.
Id. (emphasis, quotation, and some capitalization omitted).
Subsequently, in Muhammed, which Scott cites to, the defendant
admitted to entering the victim’s home with a co-defendant, remaining inside
the residence while items were either removed or damaged, and not having a
legal right to be in the home. The defendant then entered into a negotiated
guilty plea to criminal trespass, and the Commonwealth nolle prossed the
remaining charges, which included theft charges. The co-defendant pled guilty
to criminal mischief but not theft. The court thereafter sentenced the
defendant to pay restitution joint and several with his co-defendant, but did
not impose a specified amount at that time. The court later held a hearing,
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where it concluded that items missing from the victim’s home were a direct
result of the co-defendants’ conduct and set a specific amount.
On appeal, the defendant argued that “because he pled guilty to criminal
trespass, only property that was unlawfully obtained or its value substantially
decreased as a direct result of the trespass may be ordered as restitution.”
Muhammed, 219 A.3d at 1213 (quotation and quotation marks omitted).
A panel of this Court agreed with the defendant’s argument. In addition
to finding the sentence was illegal because the trial court failed to comport
with the requirements of 18 Pa.C.S. § 1106(c)(2) by not imposing a specified
amount at the time of sentencing, the Muhammed Court also concluded:
“[B]ecause [the defendant] nor his co-defendant were held criminally
accountable for the theft of items from the victim’s home, the trial court
imposed an illegal sentence when it ordered restitution for those losses.”
Muhammed, 219 A.3d at 1214.11 See also Commonwealth v. Cooper, 466
A.2d 195, 197-198 (Pa. Super. 1983) (concluding appellant could not be
ordered to pay restitution to the victim’s family for the victim’s death where
the crime to which he had pled guilty, leaving a vehicular accident scene
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11 The Muhammed Court found no error in the trial court’s imposition of
restitution for the damaged items because it concluded the damaged property
was a direct result of the defendant’s criminal conduct based on the following:
(1) the defendant acknowledged he entered the home with his co-defendant
and that property damage occurred; (2) the co-defendant pled guilty to
criminal mischief, which included property damage as an element of the
offense; and (3) the court ordered the defendant make restitution jointly and
severally with his co-defendant. Muhammed, 219 A.3d at 1214.
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without giving information or rendering aid, did not actually hold him
criminally responsible for the victim’s death).
Turning to the present matter, the trial court addressed Scott’s legality
argument as follows: “While the charges for which restitution is due were nolle
prossed, the global resolution on this matter was to include the amount of
restitution. Therefore, the Court finds [Scott]’s causal connection argument is
without merit.” Trial Court Opinion, 11/15/2019, at 2.
In light of Zrncic and Muhammed, we disagree with the court’s
imposition of restitution for the firearms at Docket No. 588. We recognize that
“restitution was an integral part of the sentencing scheme fashioned by the
trial court and acknowledged by” Scott with respect to his global guilty plea,
and he had agreed to provide for it as part of the plea. Commonwealth v.
Mariani, 869 A.2d 484, 486 (Pa. Super. 2005); see also N.T., 9/3/2019, at
10-13.
In this context it must be remembered that the primary purpose
of restitution is rehabilitation of the offender by impressing upon
him that his criminal conduct caused the victim’s loss or personal
injury and that it is his responsibility to repair the loss or injury as
far as possible. Thus recompense to the victim is secondary as [a]
sentence imposing restitution is not an award of damages.
Mariani, 869 A.2d at 486 (quotations and quotation marks omitted).
Additionally, we reiterate that a defendant “cannot agree to an illegal
sentence, so the fact that the illegality was a term of his plea bargain is of no
legal significance.” Muhammed, 219 A.3d at 1211.
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The restitution that Scott was ordered to pay to the Estate of Corkins at
Docket No. 588 was not a “direct result of the crime” to which he pleaded
guilty, burglary, at Docket No. 196. 18 Pa.C.S. § 1106(a). The matters were
two separate and unrelated criminal incidents. Due to the fact that Scott was
not “held criminally accountable” for any crime at Docket No. 588, he cannot
be ordered to pay restitution for the stolen items. See Zrncic, 167 A.3d at
152. Section 1106(a) afforded the trial court no authority to include the
restitution at issue, and consequently, we are constrained to vacate the
portion of Scott’s sentence awarding restitution to the Estate of Corkins.
In his second argument, Scott argues the evidence was insufficient to
establish the amount of restitution imposed. See Appellant’s Brief, at 17 - 18.
Based on our conclusion that the restitution imposed is illegal and should be
vacated, we need not address this argument further.
Lastly, because vacating the restitution order does not affect the overall
sentencing scheme as set forth by the trial court, we need not remand this
matter. See Commonwealth v. Lekka, 210 A.3d 343, 358-359 (Pa. Super.
2019) (“If this Court determines that a sentence must be corrected, we are
empowered to either amend the sentence directly or to remand the case to
the trial court for resentencing. If we determine that a correction by this Court
may upset the sentencing scheme envisioned by the sentencing court, the
better practice is to remand.”) (quotations and quotation marks omitted).
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In sum, we vacate the portion of Scott’s sentence awarding restitution
to the Estate of Corkins. Having discerned no other error of law, we affirm the
sentence below in all other respects.
Judgment of sentence affirmed in part and vacated in part as to
restitution only. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/21/2020
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