from the Order Entered January 21, 2014 In the Court of
Common Pleas of 39th District Fulton County Branch 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 AFFIRMANCE
Norma Jean Holmes appeals from the order entered January 21,
2014 in the Court of Common Pleas of the 39th Judicial
District, Fulton County Branch ("trial court"),
affirming a prior order denying Appellant's request to
modify the amount of restitution imposed at sentencing.
Appellant entered a plea of nolo contendere to one
count of recklessly endangering another person
("REAP") in connection with the death of the
victim, Bryan S. Nave. The trial court ordered Appellant to
pay restitution to the victim's parents, Joseph and Laura
Nave, in the amount of $12, 794.50, for the victim's
funeral expenses. Upon review, we affirm in part and vacate
facts and procedural history underlying this case are not in
dispute. In the early morning hours of November 20, 2011,
Appellant and the victim left the Log Cabin Bar in Hancock,
Maryland. The victim was driving Appellant's vehicle,
with her permission. Both the victim and Appellant had been
drinking heavily that night. They were returning home to
Greencastle, Pennsylvania, when the victim lost control of
the vehicle on State Route 70, westbound. The victim was
killed in the single-vehicle accident; Appellant, who was
asleep in the passenger seat, survived the crash.
was charged with one count of REAP and two summary counts of
Permitting Violation of Title. On October 9, 2012, Appellant
pled nolo contendere to the charge of REAP and the
Commonwealth nolle prossed the remaining charges.
Appellant appeared for sentencing on November 5, 2012, before
the Honorable Douglas W. Herman. At sentencing, defense
counsel remarked that there was no agreement as to
restitution. N.T., Hearing, 11/5/12, at 5. The trial court
stated, "[b]ut we will put the amounts in the
restitution order, and that's the starting point for it
and then, Mr. Keller, I think the procedure is for you to
request a hearing at some point." Id. The trial
court imposed a sentence of two years' probation, plus
costs and restitution:
You're placed on probation for a period of 24 months, pay
the court costs, pay $200 to the Fulton County Law Library.
You'll undergo a drug and alcohol assessment and
following any recommendations for treatment, 50 hours of
community service. You may not consume alcohol or any
controlled substance and you'll [be] subject to random
testing to insure compliance with that condition. You'll
pay the restitution as determined by the district attorney
and, of course, there's an issue with that that the
courts with [sic] deal with at some point, and finally you
have a supervision fee of $25 per month to defray the cost of
the supervision that the court has ordered in this case.
Id. at 9-10.
November 6, 2012 sentencing order, under "Financials,
" provided that Appellant shall pay all court costs, a
$25 per month supervision fee, and restitution as determined
by the district attorney in the amount of $12,
794.50 to the victim's parents, Joseph and
Laura Nave. (Docket #21.) On July 31, 2013, Appellant filed a
"motion for restitution hearing, " arguing that
restitution was improper where the victim's death was
caused by his own criminal conduct of driving under the
influence of alcohol. The Commonwealth filed an answer on
August 14, 2013, responding that Appellant's recklessness
in allowing the victim to drive her car caused the
victim's death, and that the victim's parents, as his
personal representatives, stand in his shoes as victims
pursuant to 18 Pa.C.S.A. § 1106(h). (Docket #19.)
September 16, 2013, the parties filed a "stipulation of
facts in lieu of hearing, " which set forth the
operative facts as follows:
1. [Appellant] Norma Jean Holmes and Bryan S. Nave, sui juris
adults, agreed that he would pick her up at her home in
Greencastle, Pennsylvania on November 19, 2011 to go together
to the Log Cabin in Hancock, Maryland.
2. Mr. Nave drove his vehicle to Greencastle, where it became
inoperable and [Appellant] allowed him thereafter to drive
her car. Both Mr. Nave and [Appellant] consumed alcoholic
beverages on the night of November 19, 2011/early morning of
November 20, 2011. The attached handwritten statement of
[Appellant] on Pennsylvania State Police Victim/Witness
Statement Form, dated 12/21/11 and the attached two page
handwritten statement of [Appellant] on Pennsylvania State
Police Noncustodial Written Statement Form dated 12/21/11 may
be considered as her testimony.
3. After they got into her vehicle at the Log Cabin,
[Appellant] fell asleep and Mr. Nave apparently drove
westbound on SR 70 instead of eastbound which would have
taken him in the direction of Greencastle.
4. Mr. Nave crashed the vehicle along the left lane of SR 70
westbound and died as a result of his injuries, while
[Appellant] suffered bodily injury which resulted in her
transport to and treatment in Conemaugh Hospital in
5. The claim for restitution[, ] set forth by the
Commonwealth at sentencing, is in keeping with the letter by
Fulton County Victim Services Coordinator Carolyn Kerlin,
which is attached hereto.
"Stipulation of facts in lieu of hearing, " 9/16/13
at 1-2; Docket #17 (reformatted for ease of reading).
statements to police, attached to the stipulation of facts,
are as follows:
Bryan Nave asked me out. After convincing me (was opposed
because of his age) I finally agreed to go with him (Bryan)
to the Log Cabin in Hancock, MD. I told Bryan the only
stipulation was he (Bryan) had to pick me up at home. Bryan
said "no problem!" Bryan arrived approx. 8:10-8:15
[p.m.] on 11-19-11. I had to stop at my local Legion to let a
friend know I wouldn't be there that evening, that my
plans changed! Bryan and I went to [Greencastle] Legion for
one drink. Bryan and I left [the] Legion and went to [the]
gas station. Got gas, Bryan wanted liquor for [the] ride to
[the] Log Cabin so I directed Bryan to [the] liquor store.
Bryan and I left [the] liquor store and headed to [the] Log
Cabin. Bryan and I drank, talked, and danced that evening. I
was tired so I asked Bryan if Bryan was ready to leave
(approx. 1 AM 11-20-11). Bryan said yes. Bryan and I got into
my car (Bryan still driving). I layed [sic] my seat back and
went to sleep. I woke up after [the] accident. I found my way
out of my car, flagged down help. I remember being in and out
of [sic]. I briefly remember [the] ride in [the] ambulance. I
remember hearing [the] rotors of [the] helicopter and then
woke up in [the] hospital when they were cutting my clothes
off. I found out that after noon that Bryan didn't make
State Police Victim/Witness Statement Form, 12/21/11 at 1.
Bryan Nave met [Appellant] and went to Greencastle Legion. He
had (1) beer believes Budweiser. Bryan drove
[Appellant's] car to Sheetz in Greencastle. He then drove
the car to [the] liquor store. He bought a pt. of Cpt.
Morgan. [Appellant] made Bryan and herself a mixed drink in
the car. They then went to the Log Cabin in Hancock. Bryan
bought all the drinks that night. He drank approx. 10
drinks. [Appellant] thinks she drank 6-7 mixed drinks.
[Appellant] told Bryan that she don't [sic] drink and
drive because she has a CDL [(Commercial Driver's
License)] and she don't [sic] want to lose them. Bryan
drank (3) straight shots of whiskey back to back. [Appellant]
related she believes they left [the] bar around 0100 hours
due to the time of the accident. [Appellant] related she got
into the passenger seat and went to sleep.
Pennsylvania State Police Noncustodial Written Statement,
12/21/11 at 2.
letter dated October 26, 2012, Carolyn Kerlin, Victim
Services Coordinator, opined that Appellant's actions of
permitting the victim to drive her vehicle knowing that he
had consumed at least ten drinks caused the victim's
death and that Appellant should be required to make
restitution to the victim's parents for funeral expenses.
However, Ms. Kerlin acknowledged that if a victim's
compensation claim were filed, it would likely be viewed as a
DUI case for purposes of determining the victim's
eligibility for compensation: "If the victim was
driving, or the evidence seems to support that he was, then
the claim would be denied since he was driving a vehicle
while intoxicated, which is against the law and directly
caused his death."
order entered October 29, 2013, the trial court denied
Appellant's request to modify the restitution award.
(Docket #14.) The trial court found that restitution was
appropriate both as a condition of Appellant's probation
under 42 Pa.C.S.A. § 9754(c)(8) of the Sentencing Code,
and as part of her sentence under 18 Pa.C.S.A. § 1106(a)
of the Crimes Code, which provides for mandatory restitution
where a defendant's actions directly resulted in personal
injury to the victim:
In light of these two standards for imposing restitution, we
believe that both have been satisfied. In regards to the
"direct causation" standard, we find that the
reckless endangerment of Bryan Nave directly resulted in his
death. Therefore, the funeral costs which were imposed as
restitution were the direct result of [Appellant's]
engaging in reckless conduct which placed Mr. Nave in danger
of death. Additionally, a sentence of probation was imposed.
Even if the sentence of probation did not rise to the level
of direct causation, the restitution would easily fall under
the standard of restitution as a condition of
Order, 10/29/13 at 2.
November 21, 2013, Appellant filed an application for
reconsideration, arguing that the record did not support a
finding that restitution was ordered as a condition of
probation. Even if it had been, Appellant argued, the trial
court failed to inquire into Appellant's ability to pay,
as required by 42 Pa.C.S.A. § 9754. According to
Appellant, restitution was imposed under 18 Pa.C.S.A. §
1106(a), which is improper when the victim's injuries are
an indirect, rather than direct, result of the
defendant's criminal actions. Appellant contended that
her actions were not the sole or direct cause of the
victim's death, where he was driving under the influence
of alcohol at the time of the fatal accident. Furthermore,
Appellant argued that even if restitution was appropriate
under 18 Pa.C.S.A. § 1106(a), the trial court was
required to apportion damages where Appellant's actions
were not the sole cause of the victim's injuries. (Docket
November 22, 2013, Appellant filed a notice of appeal from
the trial court's October 29, 2013 order denying
Appellant's request to modify restitution. (Docket #12.)
On November 26, 2013, the trial court granted Appellant's
application for reconsideration and ordered that all appeal
proceedings be stayed pending reconsideration of its October
29, 2013 order. (Docket #11.) On January 21, 2014, following
receipt of the Commonwealth's response, Appellant's
application for reconsideration was denied. (Docket #8.) In
its January 21, 2014 order, the trial court reiterated that
the record fully supported restitution under 18 Pa.C.S.A.
§ 1106(a); however, the trial court stated that
restitution was imposed as a condition of Appellant's
probation under 42 Pa.C.S.A. § 9754.
[Appellant] argues that the [c]ourt's sentencing Order of
November 6, 2012 did not make restitution a condition of
probation. The Commonwealth appears to support this
contention, however, the [c]ourt strongly disagrees with both
the Commonwealth and [Appellant]. After review of the Order
of November 6, 2012, we conclude that Order specifically
calls for a 24 month sentence of probation and language
requiring [Appellant] to pay restitution in the amount of
$12, 794.50 to Joseph and Laura Nave. It is of no consequence
that the directive to pay restitution did [not] fit into the
special conditions section of the formatted sentencing order.
The Order clearly directs restitution as a condition of
Order, 1/21/14 at 2, ¶4. In addition, the trial court
opined that Appellant's ability to pay can be assessed at
any time, by the court sua sponte, or on
Appellant's own motion. Id. at 3, ¶ 5. The
trial court also found this issue to be waived, as it was not
raised previously. Id. The trial court advised
Appellant that she had 30 days to appeal the ruling.
filed a notice of appeal on February 18, 2014. (Docket #7.)
On February 25, 2014, Appellant was ordered to file a concise
statement of errors complained of on appeal within 21 days
pursuant to Pa.R.A.P. 1925(b); Appellant complied on March
17, 2014, and on April 28, 2014, the trial court filed a Rule
1925(a) opinion. The trial court opined that restitution was
appropriate under 18 Pa.C.S.A. § 1106(a) because the
loss was the direct result of Appellant's criminal
actions. Trial Court Opinion, 4/28/14 at 3. The trial court
stated that "[a]s a direct result of [Appellant's]
conscious disregard of the known risk of death or great
bodily harm caused by driving while under the influence, the
victim died." Id. The trial court also found
that the victim's conduct in driving while under the
influence of alcohol was not an intervening cause of his
death. Id. However, the trial court insisted that,
"[f]rom the sentencing hearing of November 5, 2012, it
is clear that restitution was a condition of probation."
Id. at 5. The trial court observed that when
restitution is imposed as a condition of probation, rather
than as a direct sentence under the Crimes Code, an indirect
connection between the criminal activity and the victim's
loss is sufficient. Id. at 4-5 (citing
Commonwealth v. Harriott, 919 A.2d 234, 238 (Pa.
Super. 2007), appeal denied, 934 A.2d 72 (Pa.
2007)). With regard to Appellant's ability to pay, the
trial court determined that a defendant's ability to pay
costs, fines, or restitution does not need to be assessed
prior to sentencing.
The court only needs to assess a defendant's ability to
pay costs, fines, or restitution in the event that the
defendant will be confined for failure to pay said costs,
fines, or restitution. Because [Appellant] is not in danger
of confinement, there was no error when the Court did not
address [Appellant's] ability to pay restitution.
Id. at 5 (citing Commonwealth v. Childs, 63
A.3d 323, 326 (Pa. Super. 2013), appeal denied, 70
A.3d 808 (Pa. 2013); Pa.R.Crim.P. 706).
raised the following issues on appeal:
1. Did the court err by finding that restitution was imposed
as a condition of probation and applying an indirect
causation standard under 42 Pa.C.S. § 9754(c)(8) when
the sentencing proceedings did not indicate that it was a
condition of probation and the court did not make a
determination regarding what loss had been caused by
[Appellant] and/or the amount [Appellant] could afford to
2. If restitution was ordered as a condition of probation,
did the court err by failing to make a determination under 42
Pa.C.S. § 9754(c)(8) regarding the loss or damage caused
by [Appellant] or assess [Appellant's] ability to pay
3. Did the court err by finding that restitution was proper
as a direct sentence under 18 Pa.C.S. § 1106 when the
funeral and memorial costs for the victim, on which the
restitution was based, were not the direct result of
[Appellant's] reckless endangerment of the victim and
[Appellant] was not held criminally liable for causing the
accident in which the victim was killed?
4. Did the court err when it failed to consider the extent of
the victim's injury and the damage caused by
[Appellant's] conduct and to apportion restitution when
[Appellant's] actions were not the sole cause of the
Appellant's Brief at 8-9.
Court certified this case for en banc review to
address the following issue: "Whether parents may be
considered 'victims' for purposes of determining
restitution under 18 Pa.C.S.A. § 1106(a)?" The
parties have filed supplemental briefs addressing this issue.
we must address a procedural matter. Appellant was sentenced
on November 5, 2012, but did not request modification of
restitution until July 31, 2013, nearly nine months later.
Ordinarily, of course, post-sentence motions must be filed no
later than 10 days after imposition of sentence. Pa.R.Crim.P.
720(A)(1). However, a motion requesting modification of
restitution is not considered a typical post-sentence motion
subject to timeliness constraints. See Commonwealth v.
Stradley, 50 A.3d 769, 772 (Pa. Super. 2012) (citing 18