J-S31004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

GREGORY LYNN ELDRED

                            Appellant              No. 431 WDA 2016


                    Appeal from the Order February 29, 2016
                 In the Court of Common Pleas of Potter County
              Criminal Division at No(s): CP-53-CR-0000059-2013


BEFORE: PANELLA, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J.                            FILED JUNE 15, 2017

       Appellant, Gregory Lynn Eldred, appeals from the order entered in the

Potter County Court of Common Pleas, granting the Commonwealth’s motion

to amend the amount of restitution owed by Appellant. As discussed below,

we find that the restitution portion of judgment of sentence imposed by the

trial court is illegal. Accordingly, we reverse the order and remand for

further proceedings.1


____________________________________________


1
  Although the trial court imposed the judgment of sentence on July 16,
2013, as this appeal stems from the order amending the restitution portion
of that sentence, we find the appeal timely. See Commonwealth v.
Wozniakowski, 860 A.2d 539, 543 (Pa. Super. 2004). See also
Commonwealth v. Gentry, 101 A.3d 813 (Pa. Super. 2014) (addressing
appeal from order dismissing motion to discharge restitution and reducing
restitution amount entered well after imposition of the judgment of
sentence).
J-S31004-17



      In December 2012, Appellant shot and killed his ex-wife while she

played the organ during Sunday church services. Appellant pled guilty to

first-degree murder in exchange for a life sentence without the possibility of

parole. As part of Appellant’s plea, he agreed to pay restitution so that

witnesses to the crime could receive counseling. In its sentencing order, the

court wrote that it “will impose additional restitution of $100 so victims may

continue to receive counseling for up to six months, said amount to be

amended from time to time as counseling occurs.” Sentencing Order,

7/16/13, at 1.

      On December 14, 2015, over two years after sentencing, the

Commonwealth filed a motion to amend restitution. The Commonwealth’s

motion stated that Jane Metzger, a witness to the crime who had not

previously been reimbursed for counseling, now requested compensation for

counseling she had received. Appellant objected to the motion, and the court

held a hearing. At the hearing, Appellant’s counsel protested the timeliness

of Ms. Metzger’s request. Counsel also objected to the classification of Ms.

Metzger as a “victim” for purposes of Pennsylvania’s statute governing

restitution, 18 Pa.C.S.A. § 1106.

      The court held that the motion was not subject to time constraints,

given the language permitting amendment of the order “from time to time

as the counseling occurs.” Sentencing Order, 7/16/13, at 1. The court

granted the Commonwealth’s motion and amended its order directing

Appellant to pay $1,427.20 to the Victim’s Compensation Assistance

                                    -2-
J-S31004-17



Program for Ms. Metzger’s counseling expenses. Appellant timely appealed.

After our Court remanded for a Grazier hearing, the court appointed

counsel. Appellant’s case is now before us.

      On appeal, Appellant argues the trial court erred in granting the

Commonwealth’s motion to amend the order, because Ms. Metzger is not a

“victim” as defined by 18 P.S. § 11.103 and incorporated by 18 Pa.C.S.A. §

1106. Appellant indicates the statute only permits recovery of restitution by

a direct victim, or a family member of a direct victim. Appellant contends

that the statutory definition of a direct victim is someone against whom the

crime has been committed or attempted; hence, Ms. Metzger would not

qualify as a direct victim. Appellant concludes this Court must reverse the

trial court’s order amending the restitution amount.

      “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.” Commonwealth v. Gentry, 101 A.3d 813, 816 (Pa. Super.

2014) (citation omitted). In a challenge to the legality of sentence, our

standard of review is whether the sentencing court committed an error of

law. Commonwealth v. Dietrich, 970 A.2d 1131, 1133 (Pa. 2009) (citation

omitted).

      “The imposition of restitution is within the sound discretion of the

sentencing court and must be supported by the record.” Commonwealth v.

Solomon, 25 A.3d 380, 389 (Pa. Super. 2011) (citation omitted). “[T]he

primary purpose of restitution is rehabilitation of the offender by impressing

                                    -3-
J-S31004-17



upon him that his criminal conduct caused the victim’s loss or personal

injury and that it is [the offender’s] responsibility to repair the loss or injury

as far as possible.” Commonwealth v. Biauce, __ A.3d __, __ (Pa. Super.,

filed May 15, 2017) (brackets in original) (citation omitted).

      “The court may, at any time or upon the recommendation of the

district attorney that is based on information received from the victim …

alter or amend any order of restitution … provided, however, that the court

states its reasons and conclusions as a matter of record for any change or

amendment to any previous order.” 18 Pa.C.S.A. § 1106(c)(3). Thus,

Section 1106(c)(3) explicitly permits the court to modify the restitution

amount, provided it expresses its reasons for doing so on the record. See

Commonwealth v. Dietrich, 970 A.2d 1131, 1135 (Pa. 2009). Additionally,

the   statute   specifically   does   not   impose   time   constraints   for   such

modifications. See id.

      Thus, the court is not under time constraints for altering the order of

restitution, provided it states its reasons for modification. See id. However,

the court’s discretion is far narrower when determining who qualifies as a

recipient of restitution. Recipients must belong to one of four statutorily

defined categories.

      “[R]estitution is not meant to be a reimbursement system to third

parties but rather a compensation system to ‘victims’ as that term is defined

by the statute.” Solomon, 25 A.3d at 390 (emphasis added) (citation

omitted). The statute reads:

                                        -4-
J-S31004-17



     “Victim.” The term means the following:

         (1) A direct victim.

         (2) A parent or legal guardian of a child who is a direct
         victim, except when the parent or legal guardian of the
         child is the alleged offender.

         (3) A minor child who is a material witness to any of the
         following crimes and offenses under 18 Pa.C.S. (relating
         to crimes and offenses) committed or attempted against a
         member of the child’s family:

           Chapter 25 (relating to criminal homicide).

           Section 2702 (relating to aggravated assault).

           Section 3121 (relating to rape).

         (4) A family member of a homicide victim, including
         stepbrothers or stepsisters, stepchildren, stepparents or a
         fiancé, one of whom is to be identified to receive
         communication as provided for in this act, except where
         the family member is the alleged offender.

18 P.S. § 11.103.

     In addition:

     “Direct victim.” An individual against whom a crime has been
     committed or attempted and who as a direct result of the
     criminal act or attempt suffers physical or mental injury, death
     or the loss of earnings under this act. The term shall not include
     the alleged offender. The term includes a resident of this
     Commonwealth against whom an act has been committed or
     attempted which otherwise would constitute a crime as defined
     in this act but for its occurrence in a location other than this
     Commonwealth and for which the individual would otherwise be
     compensated by the crime victim compensation program of the
     location where the act occurred but for the ineligibility of such
     program under the provisions of the Victims of Crime Act of
     1984.



                                   -5-
J-S31004-17



Id. (citation omitted).

      In its brief, the Commonwealth argues Appellant expressly agreed to

the characterization of the witnesses to his crime as “victims” for purposes

of restitution. The Commonwealth maintains the statutory definition is

irrelevant for our purposes, as Appellant’s understanding and assent to the

sentencing court’s definition of the term was evident. The Commonwealth

asserts that Ms. Metzger is therefore entitled to restitution for her counseling

expenses, as Appellant previously agreed to this as a term of his sentence.

We disagree.

      “When counsel for both sides have arrived at a plea agreement, they

shall state on the record in open court, in the presence of the defendant, the

terms of the agreement[.]” Pa.R.Crim.P. 590(B)(1). “So long as the limits of

the agreement are plainly set forth on the record, understood and agreed to

by the parties, and approved by the trial court, we find no impediment in []

the   offer,   acceptance,   performance     or   enforcement   of   such   plea

agreements.” Commonwealth v. Parsons, 969 A.2d 1259, 1267 (Pa.

Super. 2009) (en banc) (citation omitted).

      “Assuming the plea agreement is legally possible to fulfill, when the

parties enter the plea agreement on the record, and the court accepts and

approves the plea, then the parties and the court must abide by the terms of

the agreement.” Id. at 1268. However, “[i]f no statutory authorization exists

for a particular sentence, that sentence is illegal and subject to correction.




                                     -6-
J-S31004-17



An illegal sentence must be vacated.” Commonwealth v. Kelley, 136 A.3d

1007, 1013 (Pa. Super. 2016) (citation omitted).

      The Commonwealth is correct that Appellant did agree to the terms of

the plea bargain before presenting it to the court. At sentencing, the court

repeatedly referred to parishioners who witnessed Appellant’s murder of his

wife as “victims” of his crime. Ms. Metzger was a witness of Appellant’s

crime, who did receive counseling following the incident. While Ms. Metzger

was not an actual victim of the murder Appellant committed, the transcripts

make it evident that all parties understood the word “victims” in the

restitution order to refer to the witnesses to Appellant’s criminal act.

      Nevertheless, we are constrained to find that Ms. Metzger cannot be

deemed a “victim” under the precise, defined meaning of the restitution

statute. Appellant pled guilty to first-degree murder. The victim of that crime

was his ex-wife, who died during the shooting. Appellant was initially

charged with recklessly endangering another person, simple assault, and

other crimes against the witnesses involved here. See Criminal Information,

filed 4/10/13, at 1. However, the Commonwealth chose not to prosecute

Appellant on those charges as part of the plea agreement. See Plea

Agreement, filed 6/5/13, at 1-2. Thus, the only direct victim of Appellant’s

crime was his ex-wife, as she was the only person against whom Appellant

committed the crime for which he was convicted. See 18 P.S. § 11.103.

      While Ms. Metzger is certainly an indirect victim of Appellant’s criminal

act, she does not qualify as a direct victim for purposes of restitution. See

                                      -7-
J-S31004-17



id. She is also precluded from the statute’s other definitions of a victim, as

she is not and does not claim to be related to the murder victim. See id.

Consequently, despite Appellant’s initial assent to this provision of his

sentence as part of his plea, the sentencing court’s imposition of restitution

for the witnesses of Appellant’s crime is invalid. See Commonwealth v.

Gentry, 101 A.3d 813, 819 (Pa. Super. 2014) (citation omitted) (“Our cases

clearly state that a criminal defendant cannot agree to an illegal sentence,

so the fact that the illegality was a term of [the defendant’s] plea bargain is

of no legal significance.”) Accordingly, we reverse the February 29 order.

      The order of restitution portion of the judgment of sentence includes

matters outside the scope of this decision. As our decision finds a portion of

that order illegal, “the appropriate remedy is for the trial court to have an

opportunity to impose a new restitution order.” Id. On remand, the trial

court shall vacate the order of restitution portion of the judgment of

sentence and conduct a new sentencing hearing, limited to the issue of

restitution. See id.

      Order reversed. Case remanded. Jurisdiction relinquished.




                                     -8-
J-S31004-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/15/2017




                          -9-
