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Commonwealth v. Whatley

Superior Court of Pennsylvania

October 18, 2019

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID WHATLEY Appellant

          Appeal from the Judgment of Sentence July 18, 2017 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0001802-2016

          BEFORE: PANELLA, P.J., STABILE, J., and McLAUGHLIN, J.

          OPINION

          PANELLA, P.J.

         David 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.

         On 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.[1] 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.

         With 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.

         The 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.

         Appellant 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).

         In the 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.

         This 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 ...

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