Appeal from the Judgment of Sentence entered on September 19, 2012 in the Court of Common Pleas of Jefferson County, Criminal Division, No. CP-33-CR-0000310-2012
BEFORE: STEVENS, P.J., BOWES and MUSMANNO, JJ.
Ruston L. Kinnan ("Kinnan") appeals from the judgment of sentence imposed after he pled guilty to theft by unlawful taking, 18 Pa.C.S.A. § 3921(a). At issue in this appeal is whether the restitution component imposed as a condition of Kinnan's probation is illegal. Finding that it is, we vacate the judgment of sentence and remand for resentencing.
Prior to the theft in question, Kinnan was an employee of Miller Welding Company ("Miller Welding"), located in Brookville, Pennsylvania. On the evening of April 26, 2012, Casey Belfiore ("Belfiore"), a Miller Welding employee, called the Brookville Police Department to report a suspected theft that he had witnessed earlier that day at the Miller Welding plant ("the plant"). According to Belfiore, he saw Kinnan, who was supposed to have been out on disability leave, rummaging through the plant's garage. Belfiore then saw Kinnan drive away from the plant in a red pick-up truck, with a quantity of metal protruding through the rear window of his truck. Belfiore checked the plant's metal inventory lists and determined that a large quantity of aluminum and other metals was missing from the garage.
Later that day, a police officer investigating the incident arrived at Kinnan's residence and asked Kinnan whether he was involved in the theft. Kinnan denied any involvement. The officer asked Kinnan for permission to look in Kinnan's garage for the stolen metal. The owner of the garage, Kinnan's mother, granted permission and the police located all of the metal taken from the plant. That same day, Miller Welding employees provided the police with documentation listing the pieces of metal taken by Kinnan and the value of each item. The combined value of all of the metal taken was $3, 010.41. Notably, the police returned all of the metal that Kinnan had stolen to Miller Welding. Additionally, there is nothing in the record indicating that the metal, or the premises from which it was taken, was damaged in any way.
Following his arrest, Kinnan entered into a negotiated plea agreement with the Commonwealth. Pursuant to the agreement, at sentencing, Kinnan pled guilty to theft by unlawful taking and, in exchange, received a sentence of one to two years in prison, followed by three years of probation. Importantly, the sentencing court also ordered Kinnan to pay $3, 010.41 in restitution to Miller Welding. See N.T., 9/19/12, at 6. Kinnan's defense counsel argued to the sentencing court that restitution was inappropriate because the police had recovered all of the stolen metal and returned it, undamaged, to Miller Welding. Id. at 7. In response to this argument, the sentencing court stated as follows:
THE COURT: I'm putting it on a rehabilitative condition of his probation because  Kinnan is a habitual criminal. So he can prove to me that after he gets out of the state sentence[, ] he's going to abide, you can pay Miller Welding because you were trying to make money for yourself.
Id. at 8. Kinnan timely filed a Notice of appeal from the September 19, 2012 Sentencing Order.
On appeal, Kinnan raises the following issue for our review:
Whether the trial court properly assessed restitution against [Kinnan] (as a condition of probation and not as a direct sentence) where [the] victim did not suffer any loss, direct or indirect, on account of [Kinnan's] actions and where the trial court made no inquiry [regarding] whether [Kinnan] was able to pay restitution as a condition of probation?
Brief for Appellant at 5.
Initially, we note that
[i]n the context of criminal proceedings, an order of restitution is not simply an award of damages, but, rather, a sentence. 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. The determination as to whether the trial court imposed an illegal ...