from the Order Entered May 4, 2018 In the Court of Common
Pleas of Dauphin County Criminal Division at No(s):
BEFORE: BOWES, J., OLSON, J., and STABILE, J.
F. Hunt appeals from the May 4, 2018 order denying his
request for the modification of restitution imposed pursuant
to 18 Pa.C.S. § 1106. After careful review, we reverse
and remand for resentencing.
order of restitution at issue in this case stems from
Appellant's guilty pleas to two felonies in connection
with his misappropriation of funds from his former employer,
Bass Pallets LLC ("Bass Pallets"), a Pennsylvania
limited liability company that purchases and repurposes used
pallets. While employed by Bass Pallets, Appellant had the
authority to write checks on behalf of the company, and used
that authority to initiate a series of sham transactions by
writing checks from Bass Pallets to two unindicted
co-conspirators, Jeff Stickle and Johanna Rodriguez-Cruz, in
exchange for illusory sales of pallets. The co-conspirators
then cashed these fraudulent instruments and split the
resulting proceeds with Appellant. On July 27, 2016,
Appellant was charged by criminal complaint with theft by
unlawful taking, 18 Pa.C.S. § 3921(a), and forgery, 18
Pa.C.S. 4101(a)(2), following surveillance and investigation
conducted by the Pennsylvania State Police. See
Trial Court Opinion, 10/17/18, at 1-3.
February 1, 2018, Appellant pleaded guilty to both charges
and was sentenced to sixty months of intermediate punishment,
with the first nine months to be served under house arrest.
See February 1, 2018 Guilty Plea Order at 1. As part
of his sentence, Appellant was directed to pay restitution in
the amount of $37, 625 to Bass Pallets pursuant to §
1106. This restitution reflected the total amount of all
checks written to Stickle and Rodriguez-Cruz that "had
no supportive documents legitimizing the transactions."
See Trial Court Opinion, 10/17/18, at 2-3; see
also February 1, 2018 Restitution Information at 1.
During his guilty plea colloquy, Appellant requested a
hearing to modify the restitution imposed by the trial court,
which was granted. See February 1, 2018 Order.
4, 2018, the trial court held a modification hearing, at
which Appellant argued that the trial court was not
statutorily empowered to impose restitution upon him under
§ 1106 with respect to a limited liability company,
citing our Supreme Court's holding in Commonwealth v.
Veon, 150 A.3d 435 (Pa. 2016) in support of his
position. See N.T. Modification Hearing, 5/4/18, at
4. An off-the-record sidebar took place concerning the legal
specifics of Appellant's claims and the Commonwealth
adduced factual testimony from Jeffrey L. Stoner, one of the
co-owners of Bass Pallets. Id. at 3-24. At the
conclusion of the hearing, the trial court declined to modify
its restitution order, notwithstanding Appellant's
argument that Bass Pallets was not a proper
"victim" for the purposes of § 1106 under
Veon. Id. at 24-25 (emphasis added). An
order denying Appellant's request for modification of
restitution was entered the same day. On June 4, 2018,
Appellant timely filed a notice of appeal. On June 6, 2018,
the trial court directed Appellant to file a concise
statement of matters complained of on appeal pursuant to
Pa.R.A.P. 1925(b), and Appellant timely complied.
essentially argues that it was "illegal for the court to
order restitution to a victim who is a limited liability
company because the definition of 'victim' in the
version of Pennsylvania's restitution statute (18 Pa.C.S.
§ 1106) applicable on the offense dates of the instant
prosecution failed to include any non-human business entity
other than an insurance company . . . ." See
Appellant's brief at 4; see also Appellant's
Rule 1925(b) Statement at ¶ 6 ("As the restitution
in this matter was ordered to compensate a business entity
that is neither an enumerated victim under the statute nor an
actual person, [the trial court] erred in ordering
restitution in this matter."). The gravamen of
Appellant's argument is that the definition of
"victim" set forth at 18 Pa.C.S. § 1106 does
not include corporate entities like Bass Pallets, rendering
the restitution portion of Appellant's sentence illegal
under Pennsylvania law.
that "[i]n the context of criminal proceedings, an order
of 'restitution is not simply an award of damages, but,
rather, a sentence.'" Commonwealth v.
Atanasio, 997 A.2d 1181, 1182-83 (Pa.Super. 2010)
(quoting Commonwealth v. C.L., 963 A.2d 489, 494
(Pa.Super. 2008)). As such, "[a]n 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."
Id. at 1183 (citing Commonwealth v. Redman,
864 A.2d 566, 569 (Pa.Super. 2004)). Accordingly,
"'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.'" Id. (quoting Commonwealth v.
Hughes, 986 A.2d 159, 160 (Pa.Super. 2009)). This case
will also necessarily call upon us to engage in statutory
construction, which similarly presents a pure question of law
and also implicates the legality of Appellant's sentence.
Commonwealth v. Shiffler, 879 A.2d 185, 189 (Pa.
2005) (citing Commonwealth v. Bradley, 834 A.2d
1127, 1131 (Pa. 2003)). Thus, our standard of review is
de novo and our scope of review is plenary.
1106 was amended on October 24, 2018 by the Pennsylvania
General Assembly during the pendency of this appeal but long
after Appellant's criminal actions, guilty plea, and
sentencing were completed. See 2018 Pa. Legis. Serv.
Act 2018-145 (S.B. 897). Preliminarily, we observe that
Appellant did not argue the retroactive application of §
1106 in his Rule 1925(b) concise statement. See
Appellant's Rule 1925(b) Statement at ¶¶ 1-6.
Nonetheless, both Appellant and the Commonwealth have devoted
significant space in their respective briefs addressing which
iteration of 18 Pa.C.S. § 1106 should be applicable to
Appellant's sentence. See, e.g.,
Appellant's brief at 23-27; Commonwealth's brief at
8-10. However, the trial court did not apply
the "new" version of § 1106 in crafting the
restitution portion of Appellant's direct
sentence. Rather, as we discuss infra, the
trial court properly applied the pre-amendment version of
§ 1106 in fashioning Appellant's sentence, but in
doing so, it erroneously enlarged the definition of victim to
include a corporate entity. See Trial Court Opinion,
10/17/18, at 6-9, 10-11.
the retroactive application of the amendments to § 1106
is presented by the Commonwealth as a type of
[A]fter the lower court in this instance filed its memorandum
opinion, the General Assembly rewrote the definition of
"victim" in 18 Pa.C.S. § 1106(h) on October
24, 2018. The new definition, as [Appellant] concedes,
includes limited liability companies as victims. This new
definition applies to [Appellant] as his judgment of sentence
is not yet final and the General Assembly indicated that the
2018 amendment was effective immediately.
brief at 8. In apparent anticipation of the
Commonwealth's claim, Appellant argues that the ex
post facto application of the amended version of §
1106 would violate Article I, § 10 of the U.S.
Constitution ("No State shall . . . pass any Bill of
Attainder, ex post facto Law, or Law impairing the Obligation
of Contracts, or grant any title of Nobility.") and
Article I, § 17 of the Pennsylvania Constitution
("No ex post facto law, nor any law impairing the
obligation of contracts, or making irrevocable any grant of
special privileges or immunities, shall be passed.").
See Appellant's brief at 23-27.
decline to give retroactive effect to the October 24, 2018
amendments to § 1106. While Pennsylvania's rules of
statutory construction clearly provide that the General
Assembly may give retroactive effect to
legislation, it requires that the legislature do so
unambiguously. See 1 Pa.C.S. § 1926 ("No
statute shall be construed to be retroactive unless clearly
and manifestly so intended by the General Assembly.").
In relevant part, the legislation adopted by the General
Assembly provides only that "[t]his act shall take
effect immediately," see 2018 Pa. Legis. Serv.
Act 2018-145 (S.B. 897) at § 3, and no provision therein
explicitly calls for its retroactive implementation.
Moreover, this Court has already held that these specific
amendments to § 1106 should not be
effective in criminal cases that began before the effective
date of the legislation, holding that "[b]ecause the
events that led to [a]ppellant's conviction occurred
before October 24, 2018, [the since-repealed] version of the
statute applies." Commonwealth v. Tanner, 205
A.3d 388, 396 n.7 (Pa.Super. 2019). In Tanner, the
appellant challenged the portion of his direct sentence
requiring him to pay substantial restitution to Shenango
Township in Lawrence County, Pennsylvania under § 1106.
Id. at 395-96. Ultimately, this Court concluded this
restitution was illegal because Shenango Township was not
considered a "victim" under the relevant statutory
provisions, relying directly upon our Supreme Court's
guidance in Commonwealth v. Veon, 150 A.3d 435 (Pa.
2016). Id. at 398.
to the factual background of this case, we note that: (1) the
events that formed the basis for Appellant's guilty plea
took place during or about July 2016; (2) Appellant pleaded
guilty and was sentenced on February 1, 2018; and (3)
Appellant's challenge to the trial court's sentence
of restitution was denied on May 4, 2018. See Trial
Court Opinion, 10/17/18, at 1-3. Thus, all of the relevant
events predate the effective date of the at-issue amendments
to § 1106 by months (or years). In light of our previous
holding in Tanner and the command of § 1926, we
conclude that the October 24, 2018 amendments to § 1106
are not applicable in the instant case.
Accordingly, we decline to address the constitutionality of
ex post facto application of the amendments to
§ 1106 in this memorandum., 
to the discrete issue of statutory interpretation, we must
determine whether the trial court was properly empowered to
sentence Appellant to pay restitution to a limited liability
company under the pre-amendment version of § 1106. It is
well-established under Pennsylvania law that
"[r]estitution 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. Kinnan, 71 A.3d 983,
986 (Pa.Super. 2013) (citing Commonwealth v. Harner,
617 A.2d 702, 704 (Pa. 1992)). While Pennsylvania statutes
generally should be construed liberally, "penal statutes
are always to be construed strictly, and any ambiguity in a
penal statute should be interpreted in favor of the
defendant." Shiffler, supra at 189
(citing Commonwealth v. Driscoll, 401 A.2d 312, 316
(Pa. 1979)); see also 1 Pa.C.S. § 1928(b)(1).
Finally, "where restitution is imposed in addition to a
statutory punishment, such as imprisonment, the order must be
strictly scrutinized since its purpose is primarily
punitive." Harner, supra at 704 (Pa.
1992) (citing Commonwealth v. Walton, 397 A.2d 1179,
1184 (Pa. 1979)).
pre-amendment version of § 1106 provides as follows:
(a) General rule.--Upon conviction for any
crime wherein property has been stolen, converted or
otherwise unlawfully obtained, . . . 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.
. . . .
(c) Mandatory restitution.-