J-S52006-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

MATTHEW HEALEY,

                          Appellant                 No. 1431 WDA 2014


           Appeal from the Judgment of Sentence March 26, 2014
            In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0006994-2013


BEFORE: SHOGAN, OLSON, and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.:                     FILED SEPTEMBER 16, 2015

      Appellant, Matthew Healey, appeals from the judgment of sentence

entered on March 26, 2014, in the Allegheny County Court of Common

Pleas. After careful review, we affirm in part, vacate in part, and remand

with instructions.

      The trial court set forth the relevant facts and procedural history of

this matter as follows:

            On January 23, 2014, [Appellant] pled guilty to two counts
      of theft and two counts of receiving stolen property. As the facts
      unfolded, [Appellant] was hired to do electrical work at [the
      victim’s] home. He did the work, which was described as “very
      good” but he also stole jewelry and 2 guns. The value of that
      jewelry and the firearms equaled $7,000.00. [Guilty Plea
      Transcript] “GPT”, 7. When that representation was made by
      government counsel, defense counsel voiced no objection to that
      valuation. GPT, 7. The Court then signed a form restitution
      order for $7,000 that same day. A pre-sentence report (“PSR”)
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       was ordered in anticipation of sentencing. The PSR revealed no
       information about restitution.

             At sentencing on March 26, 2014, both parties … reviewed
       the PSR. Sentencing Transcript (“ST”), pgs. 3, 5. No one had any
       additions or corrections regarding restitution. ST, 5-6. The
       hearing concluded without any discussion or objection about the
       $7,000 in restitution ordered 2 months earlier.

              On April 3, 2014, [Appellant] filed a post-sentence motion
       with a single focus -- the restitution. He said the Court ordered
       restitution without the government introducing “any evidence or
       testimony regarding the specific value of the items stolen.” Post-
       Sentence Motion, (“PSM”), ¶2. (April 3, 2014).

Trial Court Opinion, 12/11/14, at 1-2 (footnotes omitted).1

       On August 8, 2014, Appellant’s post-sentence motion was denied by

operation of law,2 and Appellant filed a timely appeal on September 2, 2014.

Both the trial court and Appellant have complied with Pa.R.A.P. 1925.

       In   this   appeal,    Appellant        raises   one   issue   for   this   Court’s

consideration:

       Whether the restitution award of $7,000.00, because it is
       speculative and unsupported by the record, is illegal?

Appellant’s Brief at 4.

       Our standard of review is as follows:

       It is well settled that a challenge to a court’s authority to impose
       restitution is generally considered to be a challenge to the
       legality of the sentence. A challenge to the legality of a sentence
____________________________________________


1
  The $7,000.00 in restitution was ordered as a condition of Appellant’s
probation. Order of Sentence, 3/26/14, at Count 1.
2
    Pa.R.Crim.P. 720(B)(3)(a).



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      ... may be entertained as long as the reviewing court has
      jurisdiction. It is also well-established that if no statutory
      authorization exists for a particular sentence, that sentence is
      illegal and subject to correction. An illegal sentence must be
      vacated. Issues relating to the legality of a sentence are
      questions of law; as a result, our standard of review over such
      questions is de novo and our scope of review is plenary.

Commonwealth v. Gentry, 101 A.3d 813, 816-817 (Pa. Super. 2014)

(internal citations and quotation marks omitted).

      Here, the applicable restitution statute provides, in relevant part, as

follows:

      § 1106. Restitution for injuries to person or property

      (a) General rule.--Upon conviction for any crime wherein
      property has been stolen, converted or otherwise unlawfully
      obtained, or its value substantially decreased as a direct result of
      the crime, 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.

      (b) Condition of probation or parole.--Whenever restitution
      has been ordered pursuant to subsection (a) and the offender
      has been placed on probation or parole, his compliance with such
      order may be made a condition of such probation or parole.

      (c) Mandatory restitution.--

            (1) The court shall order full restitution:

                  (i) Regardless of the current financial
                  resources of the defendant, so as to
                  provide the victim with the fullest
                  compensation for the loss. The court
                  shall not reduce a restitution award by
                  any amount that the victim has received
                  from the Crime Victim’s Compensation
                  Board or other governmental agency but
                  shall order the defendant to pay any

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               restitution ordered for loss previously
               compensated by the board to the Crime
               Victim’s Compensation Fund or other
               designated account when the claim
               involves a government agency in
               addition to or in place of the board. The
               court shall not reduce a restitution award
               by any amount that the victim has
               received from an insurance company but
               shall order the defendant to pay any
               restitution ordered for loss previously
               compensated by an insurance company
               to the insurance company.

                                 * * *

          (2) At the time of sentencing the court shall specify
          the amount and method of restitution. In
          determining the amount and method of restitution,
          the court:

               (i) Shall consider the extent of injury
               suffered by the victim, the victim’s
               request for restitution as presented to
               the district attorney in accordance with
               paragraph (4) and such other matters as
               it deems appropriate.

               (ii) May order restitution in a lump sum,
               by monthly installments or according to
               such other schedule as it deems just.

               (iii) Shall not order incarceration of a
               defendant for failure to pay restitution if
               the failure results from the offender’s
               inability to pay.

               (iv) Shall consider any other   preexisting
               orders imposed on the           defendant,
               including, but not limited      to, orders
               imposed under this title or      any other
               title.




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            (3) The court may, at any time or upon the
            recommendation of the district attorney that is based
            on information received from the victim and the
            probation section of the county or other agent
            designated by the county commissioners of the
            county with the approval of the president judge to
            collect restitution, alter or amend any order of
            restitution made pursuant to paragraph (2),
            provided, however, that the court states its reasons
            and conclusions as a matter of record for any change
            or amendment to any previous order.

                  (4) (i) It shall be the responsibility of the
                  district attorneys of the respective
                  counties to make a recommendation to
                  the court at or prior to the time of
                  sentencing as to the amount of
                  restitution     to    be   ordered.      This
                  recommendation shall be based upon
                  information solicited by the district
                  attorney and received from the victim.

                  (ii) Where the district attorney has
                  solicited information from the victims as
                  provided in subparagraph (i) and has
                  received no response, the district
                  attorney shall, based on other available
                  information, make a recommendation to
                  the court for restitution.

                  (iii) The district attorney may, as
                  appropriate, recommend to the court
                  that the restitution order be altered or
                  amended as provided in paragraph (3).

18 Pa.C.S. § 1106 (a), (b), and (c).

      Additionally:

      Restitution 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.
      Harner, 533 Pa. 14, 617 A.2d 702, 704 (1992). Where that
      statutory authority exists, however, the imposition of restitution

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     is vested within the sound discretion of the sentencing judge.
     Commonwealth          v.   Keenan,      853    A.2d     381,    383
     (Pa.Super.2004); see also id. (stating that “[t]he primary
     purpose of restitution is rehabilitation of the offender by
     impressing upon him that his criminal conduct caused the
     victim’s personal injury and that it is his responsibility to repair
     the injury as far as possible.”).

Commonwealth v. Kinnan, 71 A.3d 983, 986 (Pa. Super. 2013).

     In a criminal case, restitution may be imposed either as a direct

sentence, 18 Pa.C.S. § 1106(a), or as a condition of probation under 42

Pa.C.S. § 9754. When imposed as a sentence, the injury to property or

person for which restitution is ordered must directly result from the crime,

but when restitution is ordered as a condition of probation, as it was in the

instant case, the sentencing court has discretion to fashion probationary

conditions designed to rehabilitate the defendant and provide some measure

of redress to the victim. Kinnan, 71 A.3d at 986-987. “When restitution is

imposed as a condition of probation under [42 Pa.C.S. §] 9754, the required

nexus between the defendant’s criminal conduct and the victim’s loss is

relaxed.”   Id. (citation omitted).   “However, there must be at least an

indirect connection between the criminal activity and the loss.” Id. (citation

omitted).   “[T]o the extent a sentence of probation is imposed to make

restitution for losses caused by the defendant’s criminal conduct, there

should be proof of the damages suffered.” Id. (citation omitted). Finally,

where the sentencing court imposes restitution as a condition of probation,

the trial court is required to determine what loss or damage has been caused


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and what amount of restitution the defendant can afford to pay. Id. at 987

(citing 42 Pa.C.S. § 9754(c)(8)).

      In the case at bar, Appellant argues that the Commonwealth failed to

meet its burden.     Appellant avers that “at both the guilty plea and

sentencing hearings, the Commonwealth produced no testimony or other

evidence whatsoever detailing the nature of the jewelry and firearms that

[Appellant] had stolen. . . . [T]he award of restitution is speculative and

unsupported by the record; it is illegal and must be vacated.” Appellant’s

Brief at 11 (emphasis in original). After review, we are constrained to agree

with Appellant that the Commonwealth failed to provide any evidence that

supports restitution in any dollar amount.

      While restitution was made a condition of Appellant’s probation, and

therefore, the nexus between Appellant’s theft and the victim’s loss is

relaxed, there still must be proof of damages and consideration of

Appellant’s ability to pay.    Kinnan, 71 A.3d at 986-987; 42 Pa.C.S.

§ 9754(c)(8). Here, the restitution form baldly states that the items stolen

had a value of $7,000.00; the record also reveals that certain of the stolen

items were recovered. Restitution Order, 1/23/14; Complaint, 5/6/13, at 2;

and N.T. (Sentencing), 3/26/14, at 9.     There is nothing in the record that

reflects the value of the items taken, the value or condition of the items

recovered, or how the trial court arrived at $7,000.00.     Additionally, and




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importantly, there was no evaluation of Appellant’s ability to pay. Kinnan,

71 A.3d at 987 (citing 42 Pa.C.S. § 9754(c)(8)).

       For these reasons, we conclude that the restitution order of $7,000.00

is unsupported by the record resulting in an illegal sentence of restitution.3

Gentry, 101 A.3d at 819. Accordingly, we vacate the judgment of sentence

insofar as it pertains to restitution, and we remand for a hearing at which

the trial court shall determine the loss suffered by the victim, what amount

of restitution, if any, is appropriate, and Appellant’s ability to pay.

Commonwealth v. Atanasio, 997 A.2d 1181, 1184 (Pa. Super. 2010); 18

Pa.C.S. § 1106; and 42 Pa.C.S. § 9754(c)(8).         Appellant’s judgment is

affirmed in all other aspects.

       Judgment of sentence affirmed in part and vacated in part.        Case

remanded with instructions. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/16/2015
____________________________________________


3
  We note that the Commonwealth and the trial court state that Appellant
was aware that $7,000.00 was the claimed amount of restitution, and
Appellant did not object. Commonwealth’s Brief at 9; Trial Court Opinion,
12/11/14, at 3-4. However, we find this point of no moment – a criminal
defendant cannot agree to an illegal sentence. Gentry, 101 A.3d at 819.



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