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Commonwealth v. Holmes

Superior Court of Pennsylvania

January 4, 2017

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
NORMA JEAN HOLMES Appellant

         Appeal 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

          STABILE, J.

         Appellant 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 in part.

         The 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.

         Appellant was charged with one count of REAP[1] and two summary counts of Permitting Violation of Title.[2] 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.

         The 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[3] 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).[4] (Docket #19.)

         On 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 Johnstown, Pennsylvania.
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).

         Appellant's 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 it.

         Pennsylvania 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.

         In a 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."

         By 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 [Appellant's] probation.

Order, 10/29/13 at 2.

         On 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 #13.)

         On 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 probation.

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.

         Appellant 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).

         Appellant 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 pay?
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 restitution?
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 victim's injuries?

Appellant's Brief at 8-9.

         This 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.

         Initially, 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 ...


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