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Commonwealth v. Holmes

Superior Court of Pennsylvania

January 4, 2017

COMMONWEALTH OF PENNSYLVANIA
v.
NORMA JEAN HOLMES, Appellant

         Appeal from the Order Entered January 21, 2014, in the Court of Common Pleas of Fulton County Criminal Division at No. CP-29-CR-0000103-2012

          BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, SHOGAN, LAZARUS, MUNDY, OLSON, OTT, AND STABILE, JJ.

          OPINION IN SUPPORT OF REVERSAL

          FORD ELLIOTT, P.J.E.

         We agree that the trial court erred to the extent it ordered restitution as a condition of appellant's probation under Section 9754(c)(8) of the Sentencing Code. As explained in the Opinion in Support of Affirmance, restitution cannot be imposed as both a condition of probation and as part of a defendant's sentence under Section 1106(a) of the Crimes Code. Furthermore, the trial court did not determine appellant's ability to pay as required under Section 9754(c)(8). However, we are constrained to disagree that the victim's parents were entitled to mandatory restitution under Section 1106(a) for their son's funeral expenses.

         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 sentence is a question of law; our standard of review in cases dealing with questions of law is plenary.
Commonwealth v. Stradley, 50 A.3d 769, 771-72 (Pa.Super. 2012) (citations and quotation marks omitted); see also id. (stating that because "[the appellant's] claim on appeal challenges the legality of his sentence, its review is not abrogated by the entry of his guilty plea.").

Commonwealth v. Kinnan, 71 A.3d 983, 986 (Pa.Super. 2013).

Restitution is a creature of statute and, without express legislative direction, a court is powerless to direct a defendant to make restitution as part of his sentence. Commonwealth v. Harner, 533 Pa. 14, 617 A.2d 702, 704 (1992). Where that statutory authority exists, however, the imposition of restitution is vested within the sound discretion of the sentencing judge. Commonwealth v. Keenan, 853 A.2d 381, 383 (Pa.Super. 2004); see also id. (stating that "[t]he primary purpose of restitution is rehabilitation of the offender by impressing upon him that his criminal conduct caused the victim's personal injury and that it is his responsibility to repair the injury as far as possible.").

Id. "The court is required to specify the amount of restitution at sentencing, but may modify its order at any time provided that it states its reasons for any modification on the record." Commonwealth v. Solomon, 25 A.3d 380, 389-390 (Pa.Super. 2011), appeal denied, 40 A.3d 1236 (Pa. 2012), citing Commonwealth v. Dietrich, 970 A.2d 1131, 1135 (Pa. 2009).

In the context of a criminal case, restitution may be imposed either as a direct sentence, 18 Pa.C.S. § 1106(a), or as a condition of probation, 42 Pa.C.S. § 9754. When imposed as a sentence, the injury to property or person for which restitution is ordered must directly result from the crime. See 18 Pa.C.S.A. § 1106(a); Harner, 533 Pa. at 21, 617 A.2d at 704. However, when restitution is ordered as a condition of probation, the sentencing court is accorded the latitude to fashion probationary conditions designed to rehabilitate the defendant and provide some measure of redress to the victim. Harner, 533 Pa. at 21-22, 617 A.2d at 706. As this Court stated in Harner:
Such sentences are encouraged and give the trial court the flexibility to determine all the direct and indirect damages caused by a defendant and then permit the court to order restitution so that the defendant will understand the egregiousness of his conduct, be deterred from repeating this conduct, and be encouraged to live in a responsible way.
Harner, 533 Pa. at 22, 617 A.2d at 707; see also Commonwealth v. Walton, 483 Pa. 588, 599, 397 A.2d 1179, 1185 (1979). Thus, the requirement of a nexus between the damage and the offense is relaxed where restitution is ordered as a condition of probation. See Harner, 533 Pa. at 22-23 & n. 3, 617 A.2d at 707 & n. 3; see also 42 Pa.C.S. § 9754(c)(8).

In re M.W., 725 A.2d 729, 732 (Pa. 1999) (footnotes omitted).

         The Crimes Code, 18 Pa.C.S.A. § 1106, provides, in relevant part, as follows:

(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.
(b) Condition of probation or parole.--Whenever restitution has been ordered pursuant to subsection (a) and the offender has been placed on probation or parole, his compliance with such order may be made a condition of such probation or parole.
(c) Mandatory restitution.--
(1) The court shall order full restitution:
(i) Regardless of the current financial resources of the defendant, so as to provide the victim with the fullest compensation for the loss. The court shall not reduce a restitution award by any amount that the victim has received from the Crime Victim's Compensation Board or other governmental agency but shall order the defendant to pay any restitution ordered for loss previously compensated by the board to the Crime Victim's Compensation Fund or other designated account when the claim involves a government agency in addition to or in place of the board. The court shall not reduce a restitution award by any amount that the victim has received from an insurance company but shall order the defendant to pay any restitution ordered for loss previously compensated by an insurance company to the insurance company.
(ii) If restitution to more than one person is set at the same time, the court shall set priorities of payment. However, when establishing priorities, the court shall order payment in the following order:
(A)The victim.
(B) The Crime Victim's Compensation Board.
(C) Any other government agency which has provided reimbursement to the victim as a result of the defendant's criminal conduct.
(D) Any insurance company which has provided reimbursement to the victim as a result of the defendant's criminal conduct.
(2) At the time of sentencing the court shall specify the amount and method of restitution. In determining the amount and ...

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