J-S39040-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
                  Appellee                :
                                          :
            v.                            :
                                          :
ANDRE MELVIN MOULTON,                     :
                                          :
                  Appellant               :            No. 404 EDA 2015

     Appeal from the Judgment of Sentence entered on January 9, 2015
             in the Court of Common Pleas of Delaware County,
               Criminal Division, No. CP-23-CR-0004350-2012

BEFORE: BOWES, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                    FILED SEPTEMBER 01, 2015

      Andre Melvin Moulton (“Moulton”) appeals from the judgment of

sentence imposed following his conviction of driving under the influence

(“DUI”), and careless driving.     See 75 Pa.C.S.A. §§ 3802(a), 3714(a).

Additionally, J. Anthony Foltz, Esquire (“Foltz”), Moulton’s counsel, has filed

a Petition to Withdraw as counsel and an accompanying brief pursuant to

Anders v. California, 386 U.S. 738, 744 (1967). We grant Foltz’s Petition

to Withdraw and affirm Moulton’s judgment of sentence.

      On April 14, 2012, Moulton hit a utility pole with his vehicle near the

intersection of Route 291 and Route 420 in Tinicum Township, Delaware

County. The impact of the collision severed the pole. Police officers arriving

at the scene found Moulton outside his vehicle and noted that he smelled of
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alcohol, was slurring his speech, and staggering. Moulton was arrested after

failing three field sobriety tests.

      The case proceeded to a non-jury trial, after which Moulton was found

guilty of DUI and careless driving.          On January 9, 2015, the trial court

sentenced Moulton to 72 hours to six months in jail, with credit for time

served.   The trial court also ordered Moulton to pay a $5,000 fine and

restitution to PECO Energy Company (“PECO”), the owner of the damaged

utility pole and wires, in the amount of $14,067.

      Moulton filed a timely Notice of Appeal.            The trial court ordered

Moulton to file a Pennsylvania Rule of Appellate Procedure 1925(b) concise

statement. In response to the 1925(b) Order, Foltz filed a Notice of intent

to file an Anders brief and the trial court issued an Opinion.

      On appeal, Foltz has filed an Anders Brief raising the following

question: “Was the restitution penalty imposed on [] Moulton of $14,067 to

be paid to PECO inappropriate?” Anders Brief at 3. Foltz filed a separate

Petition to Withdraw with this Court on April 14, 2015. Moulton filed neither

a pro se brief, nor retained alternate counsel for this appeal.

      We must first determine whether Foltz has complied with the dictates

of   Anders    in   petitioning   to    withdraw   from   representation.    See

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007)

(stating that “[w]hen faced with a purported Anders brief, this Court may

not review the merits of any possible underlying issues without first



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examining counsel’s request to withdraw.”) (citation omitted). Pursuant to

Anders, when an attorney believes that an appeal is frivolous and wishes to

withdraw as counsel, he or she must

      (1) petition the court for leave to withdraw stating that after
      making a conscientious examination of the record, counsel has
      determined the appeal would be frivolous; (2) file a brief
      referring to any issues that might arguably support the appeal,
      but which does not resemble a no-merit letter; and (3) furnish a
      copy of the brief to the defendant and advise him of his right to
      retain new counsel, proceed pro se, or raise any additional points
      he deems worthy of this Court’s attention.

Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012)

(citation omitted).

      Additionally, the Pennsylvania Supreme Court has determined that a

proper Anders brief must

      (1) provide a summary of the procedural history and facts, with
      citations to the record; (2) refer to anything in the record that
      counsel believes arguably supports the appeal; (3) set forth
      counsel’s conclusion that the appeal is frivolous; and (4) state
      counsel’s reasons for concluding that the appeal is frivolous.
      Counsel should articulate the relevant facts of record, controlling
      case law, and/or statutes on point that have led to the
      conclusion that the appeal is frivolous.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

      Here, Foltz has complied with each of the requirements of Anders and

Santiago. Foltz indicates that he conscientiously examined the record and

determined that an appeal would be frivolous. Further, Foltz’s brief meets

the standards set forth in Santiago by providing a factual summation of

Moulton’s case, with support for his conclusion that the trial court’s Order of



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restitution to PECO is legal, reasonable and supported by the intent of the

legislature, rendering Moulton’s appeal wholly frivolous.       Finally, Foltz

provided a copy of his letter to Moulton, informing him of his intention to

withdraw as counsel and advising him of his rights to retain new counsel,

proceed pro se, and file additional claims. Because Foltz has complied with

the procedural requirements for withdrawing from representation, we will

independently review the record to determine whether Moulton’s appeal is,

in fact, wholly frivolous.

      Moulton, citing to Commonwealth v. Runion, 662 A.2d 617 (Pa.

1995), asserts that because PECO operates a public utility and is heavily

intertwined with the government, it should be treated as a government

agency of the Commonwealth, rendering it ineligible to receive restitution.

Anders Brief at 7.       This assertion implicates the legality of Moulton’s

sentence. See Commonwealth v. Walker, 666 A.2d 301, 307 (Pa. Super.

1995) (stating that “this court has long held that challenges to the

appropriateness of a sentence of restitution are generally challenges to the

legality of the sentence”) (citation omitted).    Legality of sentence claims

present questions of law, to which our standard of review is de novo and our

scope of review is plenary.     Commonwealth v. Bowen, 55 A.3d 1254,

1265 (Pa. Super. 2012).

      Section 1106 of the Crimes Code authorizes orders of restitution for

injuries to property and provides, in relevant part, that:



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     (a) General rule. – Upon conviction for any crime wherein
     property has [] its value substantially decreased as a direct
     result of the crime, [] the offender shall be sentenced to make
     restitution in addition to the punishment prescribed therefor.

                                    ***

     (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. . . .

                                    ***

     (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.

                                    ***

     (h) Definitions. – As used in this section, the following words
     and phrases shall have the meaning given to them in this
     subsection:

                                    ***

     “Victim” – As defined in section 479.1 of the act of April 9,
     1929 (P.L.177, No.175), known as The Administrative Code of
     1929. The term includes the Crime Victim’s Compensation Fund
     if compensation has been paid by the Crime Victim’s
     Compensation Fund to the victim and any insurance company
     that has compensated the victim for loss under an insurance
     contract.

18 Pa.C.S.A. § 1106.



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      Here, PECO was the direct victim of the property damage caused by

Moulton’s crime.     See Commonwealth v. Veon, 109 A.3d 754, 770 (Pa.

Super.   2015)     (stating   that   orders   of   restitution   are    authorized   to

compensate any direct victim of crime, even where the Commonwealth itself

is the victim); see also Commonwealth v. Brown, 981 A.2d 893, 897-901

(Pa. 2009) (stating that the legislative intent of restitution is primarily

rehabilitation and deterrence, as indicated by amendments broadening the

class of entities eligible to receive restitution to include any entity that incurs

expense on a victim’s behalf, including government agencies). 1 Therefore,

even if Moulton had been able to establish that PECO is a government

agency or state actor, Moulton’s claim that PECO is ineligible to receive

restitution as a public utility provider is without merit.             Accordingly, we

discern no error by the trial court in ordering restitution to PECO, which

qualifies as a “victim” under Section 1106. See Veon, 109 A.3d at 770.

      In his second claim, Moulton argues that the required restitution

payment of $14,067 to PECO is excessive. Anders Brief at 7. This claim

presents a challenge to the discretionary aspects of Moulton’s sentence.

See Walker, 666 A.2d at 307 (stating that “challenges alleging that a

sentence of restitution is excessive under the circumstances have been held



1
  We note that Moulton’s reliance upon Runion is misplaced. Indeed,
Runion was decided under an earlier version of Section 1106, and no longer
applies when determining what entities are eligible to receive restitution.
See Commonwealth v. Hall, 80 A.3d 1204, 1214-15 (Pa. 2013).


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by this [C]ourt to be challenges to the discretionary aspects of sentencing”)

(citation omitted).

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test:

      [W]e conduct a four-part analysis to determine: (1) whether
      appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
      and 903; (2) whether the issue was properly preserved at
      sentencing or in a motion to reconsider and modify sentence,
      see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal
      defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
      question that the sentence appealed from is not appropriate
      under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

                                      ***

      The determination of what constitutes a substantial question
      must be evaluated on a case-by-case basis.          A substantial
      question exists only when the appellant advances a colorable
      argument that the sentencing judge’s actions were either: (1)
      inconsistent with a specific provision of the Sentencing Code; or
      (2) contrary to the fundamental norms which underlie the
      sentencing process.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)

(quotation marks and some citations omitted).

      Here, Moulton filed a timely Notice of Appeal.       However, he did not

raise his sentencing claim in a Motion to modify and reduce sentence or at

sentencing.   See Commonwealth v. Reaves, 923 A.2d 1119, 1125 (Pa.

2007) (stating that “failure to file a motion for reconsideration after failing to

object at sentencing [] operates to waive issues relating to the discretionary

aspects of sentencing”); see also Commonwealth v. Williams, 787 A.2d

1085, 1088 (Pa. Super. 2001) (stating that claims challenging discretionary


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aspects of sentencing are waived when the sentencing judge is not afforded

the opportunity to reconsider or modify the sentence through a post-

sentence motion or an objection at sentencing). Additionally, a Rule 2119(f)

statement   was       not   included   in    Moulton’s   appellate   brief,   and   the

Commonwealth objected to this defect. Brief for the Commonwealth at 2;

see also Commonwealth v. Love, 896 A.2d 1276, 1287 (Pa. Super. 2006)

(stating that failure to include a Rule 2119(f) statement precludes this Court

from addressing the merits of a claim when the Commonwealth objects to

omission of the statement). Regardless of these defects, Anders requires

that we examine the merits of Moulton’s claims to determine whether his

appeal is, in fact, “wholly frivolous” in order to rule upon counsel’s request to

withdraw. See Commonwealth v. Wilson, 578 A.2d 523, 525 (Pa. Super.

1990) (stating that discretionary aspects of sentencing raised in an Anders

brief must be addressed on appeal, despite procedural violations properly

objected to by the opposing party).

      Our standard of review for challenges to discretionary aspects of

sentencing is well settled:

      [S]entencing is vested in the discretion of the trial court, and will
      not be disturbed absent a manifest abuse of that discretion. An
      abuse of discretion involves a sentence which was manifestly
      unreasonable, or which resulted from partiality, prejudice, bias
      or ill will. It is more than just an error in judgment.

Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 (Pa. Super. 2006)

(citation omitted).



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      Moulton asserts that the amount of restitution is unduly burdensome,

because it will interfere with his ability to fulfill financial obligations to his

three young children. Anders Brief at 7.

      Section 1106 states that the court shall order full restitution,

“[r]egardless of the current financial resources of the defendant.”       See 18

Pa.C.S.A. § 1106(c)(1)(i).      Additionally, a defendant’s finances are not

among the factors to be considered by the court when determining the

amount of restitution owed. See id. § 1106(c)(2)(i).

      At sentencing, the Commonwealth introduced documentation of the

injuries suffered by PECO as a direct result of Moulton’s actions.          N.T.,

1/9/15, at 13-14.     Moulton’s income and financial obligations were also

presented. Id. at 5-6, 8, 18-19. Moreover, the trial court had the benefit of

a   pre-sentence    investigation   report.      Id.   at   16-18;    see    also

Commonwealth v. Downing, 990 A.2d 788, 794 (stating that “where the

trial court is informed by a pre-sentence report, it is presumed that the court

is aware of all appropriate sentencing factors and considerations, and that

where the court has been so informed, its discretion should not be

disturbed”) (quotation marks and citations omitted).             Based on the

foregoing, Moulton’s claim that the trial court abused its discretion with

regard to the amount of restitution ordered is without merit.

      Our independent examination of the record indicates that there are no

other claims of arguable merit. See Anders, 386 U.S. at 744-45. Here, the



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trial court considered the pre-sentence investigation report, the Sentencing

Guidelines, the Sentencing Code, counsel’s arguments, the testimony of a

witness to Moulton’s character, and statements from Moulton. N.T., 1/9/15,

at 4-18.    Accordingly, Moulton’s appeal is wholly frivolous, and Foltz is

entitled to withdraw as counsel.

     Petition to Withdraw as counsel granted.       Judgment of sentence

affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/1/2015




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