J-A01024-20

                                   2020 PA Super 74


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSEPH MCCABE                              :
                                               :
                       Appellant               :   No. 48 EDA 2019

       Appeal from the Judgment of Sentence Entered December 3, 2018
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0002684-2016


BEFORE:      NICHOLS, J., MURRAY, J., and COLINS, J.*

OPINION BY MURRAY, J.:                                  FILED MARCH 27, 2020

        In a case of first impression, we address whether Veterans Court is

controlled by Chapter 3 of the Rules of Criminal Procedure (Chapter 3), and if

not, whether the trial court’s failure to conduct an ability to pay hearing

violated Appellant’s right to due process and equal protection under the United

States Constitution. After careful review, and under existing legal authority,

we conclude that Veterans Court is not governed by Chapter 3. Likewise, the

trial court did not err in failing to conduct an ability to pay hearing prior to

imposing restitution. Accordingly, we affirm.

        The trial court summarized the relevant background as follows:

               [Appellant] was arrested on April 15, 2016 and charged with
        Theft By Unlawful Taking and Receiving Stolen Property for
        stealing a tackle box containing various pieces of precious metals,
        including gold coins from an acquaintance. On April 24, 2017,
        before the Honorable Todd D. Eisenberg, [Appellant] entered an
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A01024-20


     open guilty plea to the Theft By Unlawful Taking charge, under 18
     Pa. C.S. § 3921(a), as a condition of enrolling in the Montgomery
     County Veterans’ Treatment Court Program.

            Judge Eisenberg held a restitution hearing on August 14,
     2017, at which time the victim, Dr. Thomas V. Mohn, D.D.S.,
     testified as to the contents and value of the coins in his stolen
     tackle box. Following that hearing, Judge Eisenberg entered an
     Order on January 2, 2018 ordering [Appellant] to pay restitution
     in the amount of $34,857.24, as a condition of his sentence.
     [Appellant] has been paying the monthly restitution amount since
     the order was entered. NT, 12/3/18, p. 15.

            [Appellant] successfully completed the Veterans’ Treatment
     Court Program under the supervision of the Honorable Cheryl L.
     Austin, who subsequently rendered [Appellant’s] sentence on
     December 3, 2018. At that time [Appellant] was sentenced to a
     period of two years supervision with the Montgomery County Adult
     Probation Department. It was further explained to [Appellant]
     that although his probation period ends within two years, the
     restitution order stays in effect until it is paid in full. NT, 12/3/18,
     p. 22. Judge Austin did not make the previously Ordered
     restitution part of [Appellant’s] probation.

Trial Court Opinion, 3/11/19, at 1-2 (footnotes omitted).

     On December 12, 2018, Appellant filed a post-sentence motion for

reconsideration of sentence which the trial court denied on December 14,

2018. Appellant timely appealed. Both the trial court and Appellant have

complied with Pennsylvania Rule of Appellate Procedure 1925.

     On appeal, Appellant presents the following three issues (reordered for

ease of discussion):

     1. Since Veterans Court is controlled by Chapter 3 of the Rules of
        Criminal Procedure, was it an error of law when the trial court
        instead acted pursuant to a Veteran’s Court Manual that is not
        in compliance with Chapter 3 of the Rules of Criminal
        Procedure, ordered restitution pursuant to 18 Pa.C.S.
        §1106(a) which is not permitted when ordering restitution


                                      -2-
J-A01024-20


         pursuant to Chapter 3 of the Rules of Criminal Procedure, and
         thereafter failed to dismiss all charges against [Appellant]
         based upon that illegal restitution award?

      2. Regardless of whether Chapter 3 of the Rules of Criminal
         Procedure applies to Veterans Court, was [Appellant]
         impermissibly denied a dismissal of charges based on his
         inability to pay full restitution, notwithstanding his successful
         completion of Veterans Court, in violation of his right to Due
         Process and Equal Protection under the United States
         Constitution?

      3. Conversely, if Veterans Court is not controlled by Chapter 3 of
         the Rules of Criminal Procedure, was the Court’s refusal to
         dismiss the charges against [Appellant] in error when that
         refusal was based upon an illegal order of restitution entered
         prior to sentencing with no statutory authority for such a
         restitution order?

Appellant’s Brief at 2-3.

      In each of his issues, Appellant challenges the restitution component of

his sentence.    “[A]n order of restitution must be based upon statutory

authority.”   In re M.W., 725 A.2d 729, 731–32 (Pa. 1999).             Where an

appellant’s challenge is directed to the trial court’s authority to impose

restitution, it implicates the legality of the sentence. Id. at 731 n. 4. “If no

statutory authorization exists for a particular sentence, that sentence is illegal

and subject to correction.         An illegal sentence must be vacated.”

Commonwealth v. Stevenson, 850 A.2d 1268, 1271 (Pa. Super. 2004) (en

banc) (citation omitted).

      “Moreover, challenges to an illegal sentence can never be waived and

may be reviewed sua sponte by this Court.” Commonwealth v. Randal, 837

A.2d 1211, 1214 (Pa. Super. 2003) (en banc) (citation and internal quotation



                                      -3-
J-A01024-20



marks omitted).    In evaluating a trial court’s application of a statute, our

standard of review is plenary and is limited to determining whether the trial

court committed an error of law. Commonwealth v. Dixon, 161 A.3d 949,

951 (Pa. Super. 2017) (citation omitted).

      When interpreting a sentencing statute, we are mindful that:

      ‘[t]he object of all interpretation and construction of statutes is to
      ascertain and effectuate the intention of the General Assembly.
      Every statute shall be construed, if possible, to give effect to all
      its provisions.’ 1 Pa.C.S. § 1921(a). The plain language of the
      statute is generally the best indicator of legislative intent, and the
      words of a statute ‘shall be construed according to rules of
      grammar and according to their common and approved usage. . .
      .’ 1 Pa.C.S. § 1903(a). We generally will look beyond the plain
      language of the statute only when words are unclear or
      ambiguous, or the plain meaning would lead to ‘a result that is
      absurd, impossible of execution or unreasonable.’ 1 Pa.C.S. §
      1922(1); see also Mercury Trucking, Inc. v. Pa. Pub. Util.
      Comm'n, 55 A.3d 1056, 1058 (Pa. 2012).

Commonwealth v. Hall, 80 A.3d 1204, 1211 (Pa. 2013).

      More than 40 years ago, this Court recognized the rising popularity of

diversionary courts, stating:

      These various programs differ in terms of their breadth and their
      ambition. While a majority of them are comprehensive in scope,
      others confine their attention to individuals suspected of
      committing particular crimes. In short, (diversion) programs
      share a common background, but have assumed no uniform
      structure. Nevertheless, the success of these programs has
      encouraged more and more state and local authorities to initiate
      and develop . . . programs of their own.

Commonwealth v. Kindness, 371 A.2d 1346, 1354 (Pa. Super. 1977)

(concurrence in part by Spaeth, J.) (quoting State v. Leonardis, 71 N.J. 85,

95, 363 A.2d 321, 326 (1976)).         In Pennsylvania, specifically, programs

                                      -4-
J-A01024-20


known as “Veterans Court”1             or       “problem solving courts” are   being

implemented at the county level, namely through an accreditation program

approved by our Supreme Court on August 1, 2011, and revised May 7, 2015.2

Lackawanna County established Pennsylvania’s first Veterans Treatment Court

in October 2009, and Montgomery County established its VTC in April 2011.


       In Montgomery County, Veterans Treatment Court is designed to

       enhance public safety and reduce recidivism of criminal
       defendants who are veterans by connecting them with VA
       benefits, treatment services and supports and to find appropriate
       dispositions to their criminal charges by considering the
       defendant’s treatment needs and the seriousness of the offense.

                                   *        *      *

       When the defendant is formally accepted into Veterans Treatment
       Court, the defendant must enter a plea to certain agreed-
       upon charges. Thereafter the defendant will proceed through
       the three phases of engagement identified in the Terms of
       Participation section therein.

       Sentencing may be deferred pending completion of the Veterans
       Treatment Court program. Upon successful completion of the
       Veterans Treatment Court program, the defendant’s charges
       may be reduced or dropped all together.


____________________________________________


1Veterans Court is more commonly referred to as “Veterans Treatment Court.”
We refer to the problem solving court as Veterans Treatment Court or “VTC”
throughout this decision.

2 Pennsylvania currently has an established Supreme Court accreditation
program for drug courts, but Veterans Treatment Courts have not yet been
accredited by our Supreme Court.




                                            -5-
J-A01024-20



Montgomery County Veterans Treatment Court Policy and Procedure Manual

(VTC Manual), at 1-2 (emphasis in original).3

       VTC is not unlike the pretrial diversionary program known as Accelerated

Rehabilitative    Disposition     (ARD)        that   is   available   for   offenders   of

Pennsylvania’s drinking and driving laws. The Pennsylvania Supreme Court

created ARD in 1972 pursuant to its authority to supervise the lower courts;

ARD was designed to resolve cases “by programs and treatments rather than

by punishment.” Commonwealth v. Armstrong, 434 A.2d 1205, 1208 (Pa.

1981).

       These rules, which appear at [Chapter 3], also provide that the
       defendant must agree to the terms of the ARD, and that after he
       has completed the program successfully, the charges against him
       will be dismissed, upon order of court. If he does not complete
       the ARD successfully, he may be prosecuted for the offense with
       which he was charged. The district attorney’s utilization of ARD is
       optional under the rules.

Commonwealth v. Lutz, 495 A.2d 928, 931 (Pa. 1985).                          In subsequent

decisions, this Court explained that admission into an ARD program “places

the criminal proceedings in abeyance,” so that a defendant may pursue

rehabilitation “without the necessity of trial and conviction,” and successful

completion of ARD “is not equivalent to a conviction under any circumstance.”

Commonwealth v. Brown, 673 A.2d 975, 979 (Pa. Super. 1996); accord

Commonwealth v. Hoover, 16 A.3d 1148, 1149-50 (Pa. Super. 2011).

____________________________________________


3https://www.montcopa.org/DocumentCenter/View/740/Veterans-reatment-
Court-Policy-and-Procedure-Manual?bidId= (last viewed February 3, 2020).

                                           -6-
J-A01024-20


      Here, following Appellant’s guilty plea to theft by unlawful taking, the

trial court permitted Appellant to enter the Veterans Treatment Court

program, and deferred sentencing to Appellant’s completion of the program.

The trial court outlined the following conditions of Appellant’s participation:

comply with all local, state and federal laws; make regular appearances in

Veterans Treatment Court; keep regular contact with probation; follow

through with treatment goals; comply with urine drug and alcohol screens as

requested; increase community participation or service; and pay restitution in

full. N.T., 4/24/17, at 7-8, Ex. D-2.

      Appellant argues that Chapter 3, the statutory authority for ARD,

governs all diversionary programs, including Veterans Treatment Court. In

particular, Appellant contends that “[p]roblem-solving courts are simply

specific types of diversionary courts and [ARD] is merely the term that the

Pennsylvania Supreme Court chose to refer to all pre-trial diversionary

programs generally.” Appellant’s Brief at 17. Appellant asserts that because

Chapter 3 governs ARD, and because “[t]here are no other rules in the Rules

of Criminal Procedure which could possibly control problem-solving courts,”

Chapter 3 “must control all diversionary programs.” Id. at 16. On this basis,

Appellant claims the trial court erred in failing to conduct an ability to pay

hearing before imposing restitution.

      After careful review, we disagree with Appellant’s interpretation of

Chapter 3 and observe that under the plain reading of the statute, “the rules


                                        -7-
J-A01024-20


set forth in [Chapter 3] govern the procedures with regard to Accelerated

Rehabilitative Disposition in court cases and in summary cases.”

Pa.R.Crim.P. Ch. 3, explanatory comment (emphasis added). The comment

further explains, “The rules in this Chapter provide the procedural framework

for the utilization of Accelerated Rehabilitative Disposition by the

judges of the courts of common pleas in court cases and in summary cases,

and by the minor judiciary in summary cases.” Id. (emphasis added).

      Critically, there is no language exists expanding the scope of this

Chapter   to   other   diversionary   programs   or   problem   solving   courts.

Inferentially, the omission of other specified diversionary programs reflects

the intent to exclude other problem-solving courts, and suggests that they are

separate and distinct.    As this Court has stated, “when the language of a

statute is clear and unambiguous, it must be given effect in accordance with

its plain and obvious meaning.” Commonwealth v. Kirwan, 221 A.3d 196,

200 (Pa. Super. 2019) (citations omitted). Thus, we are not persuaded by

Appellant’s claim that in the absence of “other rules in the Rules of Criminal

Procedure which could possibly control problem-solving courts[,] . . . [Chapter

3] must control all diversionary programs.” Appellant’s Brief at 16. To expand

the scope of Chapter 3 to include all diversionary programs would conflict with

the most basic principles surrounding the separation of powers. See Benson

ex rel. Patterson v. Patterson, 830 A.2d 966, 968 (Pa. 2003) (“[I]t is not

the role of the judiciary to legislate changes the legislature has declined to


                                      -8-
J-A01024-20


adopt.”); see also Snyder Bros. Inc. v. Pa. Pub. Util. Comm’n, 198 A.3d

1056, 1084-85 (Pa. 2018) (Mundy, J. dissenting) (“It is not the role of the

judiciary to divine the intentions of the General Assembly when the text of the

statute is unambiguous”).

      Even if there was ambiguity in the language used in Chapter 3,

fundamental differences between the programs would militate against a

conclusion that VTC is governed by Chapter 3. Notably, while the “decision to

submit the case for ARD rests in the sound discretion of the district attorney,”

see Lutz, 495 A.2d at 935, a determination of VTC eligibility rests with the

decision making team, which consists of a Veterans Treatment Court Judge, a

“court coordinator,” the district attorney, public defender/defense counsel,

adult probation, U.S. Veterans Affairs (VA), and County VA. See VTC Manual,

at 4-5. Also, ARD is for first-time offenders only, see Commonwealth v.

Jagodzinski, 739 A.2d 173, 176 (Pa. Super. 1999); VTC is not.

      Moreover, differences in the resolution of ARD and VTC cases militates

against a conclusion that Chapter 3 governs VTC. In particular, “after [the

defendant] has completed the [ARD] program successfully, the charges

against him will be dismissed, upon order of court.” Lutz, 495 A.2d at 931

(emphasis   added).      Conversely,    “[p]articipants   completing   Veterans

Treatment Court may have the court consider dismissing or reducing their

charges. The determination of these factors will be based on a case-by-case

assessment of prior record and nature of the offense(s) by the judge.”     VTC


                                       -9-
J-A01024-20


Manual, at 8. Ultimately, the differences in the framework between ARD and

VTC reflect the intent to separate ARD from other diversionary programs.4

       Alternatively, in his second claim, Appellant argues that the “failure of

the Commonwealth to nolle pros all counts and the failure of the trial court to

dismiss them simply because [Appellant] is indigent violates the Due Process

and the Equal Protection Clauses of the United States Constitution.”

Appellant’s Brief at 23-24. Appellant contends that the trial court made an

impermissible distinction between two classes of individuals: those who have

the present ability to pay restitution in full within two years, and those who,

because of indigency, do not have the ability. Id. at 26. He asserts that this

impermissible distinction violates the due process and equal protection clauses

of the United States Constitution and this Court’s pronouncement in

Commonwealth v. Melnyk, 548 A.2d 266 (Pa. Super. 1988).

       In Melnyk, this Court held:

       [I]n ARD determinations, the district attorney and the court must
       inquire into the reasons for the petitioner’s inability to pay
       restitution. If the petitioner shows a willingness to make a bona
       fide effort to pay whole or partial restitution, the State may not
       deny entrance to the ARD program. If the petitioner has no ability
       to make restitution despite sufficient bona fide efforts to do so,
       the State must consider alternative conditions for admittance to
       and completion of the ARD program. To do otherwise would
       deprive the petitioner of [his] interest in repaying [his] debt to
       society without receiving a criminal record simply because,
       through no fault of [his] own, [he] could not pay restitution. Such
____________________________________________


4Because we conclude that Chapter 3 does not govern VTC, we do not address
Appellant’s claim that the trial court erred in awarding restitution pursuant to
18 Pa.C.S.A. § 1106. See Appellant’s Brief at 19-21.

                                          - 10 -
J-A01024-20


      deprivation would be contrary to the fundamental fairness
      required by the Fourteenth Amendment.

Id. at 272.

      “The essence of the constitutional principle of equal protection under the

law is that like persons in like circumstances will be treated similarly.”

Commonwealth v. Albert, 758 A.2d 1149, 1151 (Pa. 2000). As recognized

in Ross v. Moffitt, 417 U.S. 600 (1974),

      “Due process” emphasizes fairness between the State and the
      individual dealing with the State, regardless of how other
      individuals in the same situation may be treated.           “Equal
      protection,” on the other hand, emphasizes disparity in treatment
      by a State between classes of individuals whose situations are
      arguably indistinguishable.

Id. at 608-09.

      Instantly, we distinguish Melnyk.       First, the appellant in Melnyk

challenged her exclusion from ARD. As discussed above, Veterans Treatment

Court, absent authority to the contrary, is not ARD.       Further, unlike the

appellant in Melnyk, Appellant was not denied admission into a diversionary

program. Rather, Appellant sought and was granted admission into Veteran’s

Treatment Court. As part of the VTC program, Appellant — as well as the

presiding judge and the court coordinator — signed the “Agreement to

Participate   in   Veteran’s   Treatment   Court,   Montgomery    County    PA”

(Agreement), in which Appellant agreed to numerous conditions “to make a

plan” that “lets [Appellant] be part of the Montgomery County Veteran’s

Treatment Court (VTC).” Ex. D-2. Among the conditions, the Agreement


                                     - 11 -
J-A01024-20


proscribes Appellant from traveling “outside the United States” without

“written approval from the visiting country’s consulate, and fines, costs, and

restitution must be paid in full.” Id. at ¶ 4. Appellant signed and initialed the

Agreement. Under these circumstances, which include Appellant’s affirmative

acts, we cannot conclude that Appellant was deprived of “fundamental fairness

required by the Fourteenth Amendment.” Melnyk, 548 A.2d at 272.

      Further,

      In the context of a criminal case, restitution may be imposed
      either as a direct sentence, 18 Pa.C.S.[A.] § 1106(a), or as a
      condition of probation, 42 Pa.C.S.[A.] § 9754. When imposed as
      a sentence, the injury to property or person for which restitution
      is ordered must directly result from the crime. See 18 Pa.C.S.A.
      § 1106(a); [Commonwealth v. Harner, 617 A.2d 702, 704 (Pa.
      1992)]. However, when restitution is ordered as a condition of
      probation, the sentencing court is accorded the latitude to fashion
      probationary conditions designed to rehabilitate the defendant
      and provide some measure of redress to the victim. Harner, [ ]
      617 A.2d at 706. As [the Pennsylvania Supreme Court] stated in
      Harner:

            Such sentences are encouraged and give the trial
            court the flexibility to determine all the direct and
            indirect damages caused by a defendant and then
            permit the court to order restitution so that the
            defendant will understand the egregiousness of his
            conduct, be deterred from repeating this conduct, and
            be encouraged to live in a responsible way.

      Harner, [ ] 617 A.2d at 707; see also Commonwealth v.
      Walton, [ ] 397 A.2d 1179, 1185 ([Pa.] 1979). Thus, the
      requirement of a nexus between the damage and the offense is
      relaxed where restitution is ordered as a condition of probation.
      See Harner, [ ] 617 A.2d at 707 & n. 3; see also 42 Pa.C.S.[A.]
      § 9754(c)(8).

In re M.W., 725 A.2d 729, 732 (Pa. 1999) (footnotes omitted).


                                     - 12 -
J-A01024-20


     In this case, the trial court stated that it imposed restitution as part of

Appellant’s criminal sentence pursuant to Section 1106 of the Crimes Code,

which provides:

     (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 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.


                              *     *        *



                                    - 13 -
J-A01024-20


         (f) Noncompliance with restitution order.--Whenever the
         offender shall fail to make restitution as provided in the order of
         a judge, the probation section or other agent designated by the
         county commissioners of the county with the approval of the
         president judge to collect restitution shall notify the court within
         20 days of such failure . . . . Upon such notice of failure to make
         restitution ... the court shall order a hearing to determine if the
         offender is in contempt of court or has violated his probation or
         parole.

18 Pa.C.S.A. § 1106(a)–(c), (f) (emphasis added); see also N.T., 12/3/18,

at 15.

         In criminal proceedings, an order of restitution is not simply an award

of damages, but is, rather, a sentence. Commonwealth v. Holmes, 155

A.3d 69 (Pa. Super. 2017). Section 1106 of the Crimes Code specifies that

restitution is mandatory and the defendant’s financial resources, i.e., his

ability to pay, is irrelevant unless and until he defaults on the restitution order.

Commonwealth v. Colon, 708 A.2d 1279, 1284 (Pa. Super. 1998); see also

18 Pa.C.S.A. § 1106. Accordingly, it bears repeating that this Court has no

authority to disregard the plain language of the Sentencing Code. 1 Pa.C.S.A.

§ 1921; see also Hall, 80 A.3d at 1211 (“The plain language of the statute

is generally the best indicator of legislative intent . . . .”). Appellant’s claim -

that his ability to pay was not considered – lacks merit because the court was

not obligated to consider ability to pay when it entered the order. Id.

         In his final issue, Appellant contends that the trial court imposed an

illegal sentence by ordering restitution prior to sentencing. Appellant’s Brief

at 21-23. Appellant claims “[t]here is absolutely no authority in the Rules of



                                        - 14 -
J-A01024-20


Criminal Procedure for a pre-sentence restitution order outside of the context

of ARD. If this [C]ourt were to conclude that [Chapter 3] do[es] not apply to

diversionary courts, such as Veterans Court, then that would mean that there

is no authority whatsoever for [a] pre-sentence restitution order. Id. at 22.

      Section 1106(c)(2) includes “the requirement that if restitution is

ordered, the amount must be determined at the time of sentencing . . . .”

Commonwealth v. Dinoia, 801 A.2d 1254, 1257 (Pa. Super. 2002)

(emphasis omitted).

      It also placed upon the Commonwealth the requirement that it
      provide the court with its recommendation of the restitution
      amount at or prior to the time of sentencing. Although the
      statute provides for amendment or modification of restitution “at
      any time,” 18 Pa.C.S.A. § 1106(c)(3), the modification refers to
      an order “made pursuant to paragraph (2) . . . .” Thus, the statute
      mandates an initial determination of the amount of restitution at
      sentencing. This provides the defendant with certainty as to his
      sentence, and at the same time allows for subsequent
      modification, if necessary.

Id. (internal citations and footnote omitted, emphasis added); see also

Commonwealth v. Smith, 956 A.2d 1029 (Pa. Super. 2008) (en banc)

(holding court cannot impose generalized, open-ended restitution order at

sentencing and then “work out the details” and amounts at later date; order

of restitution “to be determined later” is ipso facto illegal); Commonwealth

v. Mariani, 869 A.2d 484 (Pa. Super. 2005) (explaining Section 1106(c) has

two, inextricable components: (1) time at which restitution sentence must be

imposed, i.e., at sentencing hearing, and (2) specific nature of such sentence,

i.e., definite as to amount and method of payment). A sentence intended to

                                    - 15 -
J-A01024-20


include restitution, which is entered without a definite amount and a method

of payment, is illegal and must be vacated in its entirety. Id.; 18 Pa.C.S.A. §

1106.

        Here, following Appellant’s guilty plea to theft by unlawful taking, the

trial court permitted Appellant to enter Veterans Treatment Court, and

deferred sentencing until completion of the program. As a condition of VTC,

the trial court ordered Appellant to pay restitution consistent with Section

1106. Accordingly, on August 14, 2017, the trial could held a hearing, and on

January 2, 2018, entered an order requiring Appellant to pay $34,857.24. If

Appellant successfully completed the conditions of VTC, including full payment

of restitution, the trial court could exercise its discretion and dismiss

Appellant’s charges.      However, because Appellant failed to do so, on

December 3, 2018, the trial court sentenced Appellant to two years of

probation.

        Appellant’s argument – that an order of restitution can only be imposed

at sentencing – disregards the unconventional procedural posture of this case,

where restitution was imposed prior to sentencing in order for Appellant to

satisfy a condition of VTC. Further, the trial court’s restitution order comports

with Section 1106(c), which requires that the amount of restitution be

determined, “regardless of current financial resources.”        18 Pa.C.S.A. §

1106(c)(1)(i).




                                      - 16 -
J-A01024-20


      In sum, we conclude, absent clear authority or a contrary directive by

our Supreme Court, that Chapter 3 does not govern Veterans Treatment

Court. Further, we do not find that the trial court violated Appellant’s rights

to due process and equal protection, and find Melnyk distinguishable in that

regard. Finally, the trial court did not impose an illegal sentence by ordering

restitution as part of VTC.

      For the reasons stated above, we affirm Appellant’s judgment of

sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/2020




                                    - 17 -
