from the Judgment of Sentence July 18, 2017 In the Court of
Common Pleas of Allegheny County Criminal Division at No(s):
BEFORE: PANELLA, P.J., STABILE, J., and McLAUGHLIN, J.
Whatley appeals from the judgment of sentence imposed on July
18, 2017, following his guilty plea conviction of arson and
related offenses. Appellant was sentenced to five years of
probation and ordered to pay $50, 000 in restitution as a
condition of probation. On appeal, he challenges the legality
and discretionary aspects of the order of restitution. Upon
review, we conclude that because the trial court imposed
restitution without considering Appellant's ability to
pay, the order imposing such restitution constitutes an
illegal sentence. Accordingly, we vacate Appellant's
sentence and remand for resentencing.
April 19, 2017, Appellant entered a negotiated guilty plea to
two counts of arson (endangering property-reckless
endangerment of inhabited building), one count of arson
(intent to destroy unoccupied building), and one count of
risking catastrophe. The charges stemmed from Appellant setting
fire to an unoccupied house at 2503 Cleveland Street,
McKeesport, Pennsylvania. See N.T., Guilty Plea
Hearing, 4/19/17, at 7. The fire also caused damage to both
2501 and 2505 Cleveland Street. See id.
the benefit of a presentence investigation report, the trial
court sentenced Appellant to five years of probation. Upon
agreement of the parties, the court ordered a restitution
amount of zero, but left restitution open for motion by the
parties within thirty days. See N.T., Sentencing,
7/18/17, at 3, 6.
trial court held restitution hearings on October 2, 2017, and
October 23, 2017. On October 26, 2017, the court issued an
amended sentencing order, setting restitution in the amount
of $50, 000.00 as a condition of Appellant's probation.
The trial court denied Appellant's motion to reconsider,
and Appellant filed this timely appeal.
raises two questions on appeal:
1. Whether the sentence was illegal as [Appellant] was not
present for the restitution hearing and it was conducted
well outside the (90) ninety days where [Appellant] is
required to be sentenced and the counts to which
restitution was ordered were withdrawn by the Commonwealth
at the time of the plea and the court left restitution open
at the time of sentencing?
2. Whether the order of restitution was excessive and an
abuse of discretion as it failed to provide adequate
reasons for determining the amount and the evidence relied
upon was vague and unsubstantiated?
Appellant's Brief, at 7 (unnecessary capitalization
omitted; issues renumbered for ease of disposition).
first issue, Appellant claims that the restitution ordered
constitutes an illegal sentence. Specifically he claims the
sentence was illegal both because it was not imposed within
ninety days of his plea and because he was not present at the
first of two restitution hearings. See
Appellant's Brief, at 17-23. We agree that the sentence
is illegal, but do so on other grounds.
case implicates the legality of Appellant's sentence.
The scope and standard of review applied to determine the
legality of a sentence are well established. If no
statutory authorization exists for a particular sentence,
that sentence is illegal and subject to correction. An
illegal sentence must be vacated. In evaluating a trial
court's application of a statute, our standard of
review is plenary and ...