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June 19, 1997


Appeal from the Judgment of Sentence Entered April 9, 1996, in the Court of Common Pleas of Centre County, Criminal Division, at No. 1995-839. Before GRINE, J.

Before: Kelly, Saylor and Hester, JJ. Opinion BY Hester, J.

The opinion of the court was delivered by: Hester


Filed June 19, 1997

David S. Kline appeals from the April 2, 1996 judgment of sentence imposed by the Centre County Court of Common Pleas following his plea of guilty to simple assault. Appellant maintains the sentencing court violated the ex post facto clause of the United States Constitution by imposing restitution under the revisions to 18 Pa.C.S. § 1106 which allow an award of restitution in favor of an insurance company. We conclude that restitution is not punishment within the meaning of the ex post facto clause. Therefore, we affirm the restitution award even though the permissible amount was increased by the statutory revisions.

On April 8, 1995, appellant assaulted Craig Allen Knepp, punching his victim approximately fifteen times. As a result of the attack, the teenager sustained fractured facial bones, broken teeth, and cuts. Appellant was charged with aggravated assault and simple assault, and on August 7, 1995, he pled guilty to simple assault. On April 2, 1996, appellant was sentenced to six to twenty-three and one-half months imprisonment. He also was ordered to pay $330.00 in restitution to Sharon Goss, the victim's mother, and $714.50 in restitution to Geisinger Health Plan, the victim's insurer. This appeal followed.

On April 8, 1995, the day appellant assaulted Craig Knepp, restitution for injuries to person or property was controlled by the version of 18 Pa.C.S. § 1106 effective August 17, 1976. At that time, subsection (h) of section 1106 defined victim as "any person, except an offender, who suffered injuries to his person or property as a direct result of the crime."

The statutory definition of victim had been subject to various interpretations. See Commonwealth v. Runion, 541 Pa. 202, 662 A.2d 617 (1995). However, it had been clearly held that restitution could not be awarded under that definition to an insurance company which insured against the loss suffered by the direct victim of the crime. Commonwealth v. Galloway, 302 Pa. Super. 145, 448 A.2d 568 (1982). In Galloway, we vacated an order awarding restitution to an insurance company which paid for damages caused by an arson. We reasoned that the insurance company was not a victim since its payment under the insurance policy was not a loss but a contractual obligation. See also Commonwealth v. Anderson, 394 Pa. Super. 299, 575 A.2d 639 (1990)(individuals contributing to "Crime Stoppers" are not victims under 18 Pa.C.S. § 1106); Commonwealth v. Balisteri, 329 Pa. Super. 148, 478 A.2d 5 (1984)(restitution can be awarded only to direct victim and not someone who shouldered financial loss in connection with the crime); Commonwealth v. Mathis, 317 Pa. Super. 362, 464 A.2d 362 (1983)(restitution award vacated to the extent it awarded restitution to insurance companies). But see Commonwealth v. Layhue, 455 Pa. Super. 89, 687 A.2d 382 (1996) (Galloway distinguished and restitution award to insurer upheld where crime involved charges that defendant committed arson to defraud insurer and collect insurance proceeds); Commonwealth v. Kerr, 298 Pa. Super. 257, 444 A.2d 758 (1982)(we affirmed award of restitution to owner of property in the full amount of value of property taken and damaged in theft even though restitution award included amounts for which victim already had received compensation by insurer).

Effective July 1, 1995, the legislature expanded the definition of victim as follows: "The term [victim] includes the Crime Victim's Compensation Fund if compensation has been paid by the Crime Victim's Compensation Fund to the victim and any insurance company that has compensated the victim for loss under an insurance contract." Thus, it is clear that the amendment increased the amount of restitution that was allowed to be awarded in this case. Appellant maintains that due to the ex post facto clause, the sentencing court lacked authority to award restitution to the insurer under the statutory revisions.

Article I, § 10 of the United States Constitution provides that "no State shall . . . pass any . . . ex post facto Law." The Supreme Court recently revisited this clause as it relates to a state law which had the effect of increasing punishment applicable to crimes committed before enactment of the law. The clause unquestionably prohibits such action:

"The constitutional prohibition and the judicial interpretation of it rest upon the notion that laws, whatever their form, which purport to make innocent acts criminal after the event, or to aggravate an offense, are harsh and oppressive, and that the criminal quality attributable to an act, either by the legal definition of the offense or by the nature or amount of the punishment imposed for its commission, should not be altered by legislative enactment, after the fact, to the disadvantage of the accused." [Beazell v. Ohio, 269 U.S.] 167, 170, 70 L. Ed. 216, 46 S. Ct. 68 [1925].

The bulk of our ex post facto jurisprudence has involved claims that a law has inflicted a "a greater punishment, than the law annexed to the crime, when committed." Calder v. Bull, 3 U.S. 386, 3 Dall. 386, 390, 1 L. Ed. 648 (1798). We have explained that such laws implicate the central concerns of the Ex Post Facto Clause: "the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated." Weaver v. Graham, 450 U.S. 24, 30, 67 L. Ed. 2d 17, 101 S. Ct. 960 (1981).

To fall within the ex post facto prohibition, a law must be retrospective--that is "it must apply to events occurring before its enactment"--and it "must disadvantage the offender affected by it" id., at 29, 67 L. Ed. 2d 17, 101 S. Ct. 960, by altering the definition of criminal conduct or increasing the punishment for the crime, see Collins v. Youngblood, 497 U.S. 37, 50, 111 L. Ed. 2d 30, 110 S. Ct. 2715 (1990).

Lynce v. Mathis, 65 U.S.L.W. 4131, , 117 S. Ct. 891, , 137 L. Ed. 2d 63, 71-71 (1997). However, "the Constitution's explicit prohibition against ex post facto laws applies only to those laws that inflict criminal punishment. United States Trust Co. of New York v. New Jersey, 431 U.S. 1, 17 n.13, 97 S. Ct. 1505, 1515 n.13, 52 L. Ed. 2d 92 ...

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