J-S58010-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DAVID M. MEADIUS,

                            Appellant                No. 1551 WDA 2013


              Appeal from the Judgment of Sentence July 11, 2013
               in the Court of Common Pleas of Allegheny County
               Criminal Division at No.: CP-02-CR-0004482-2012


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                   FILED NOVEMBER 26, 2014

        Appellant, David M. Meadius, appeals, nunc pro tunc, from the

judgment of sentence entered after his open guilty plea to driving while

operating privileges are suspended or revoked, operation of a motor vehicle

without required financial responsibility, and accidents involving death or

personal injury while not properly licensed.1    Specifically, Appellant argues

that the trial court erred in imposing restitution of $30,487.43 without

determining his financial ability to pay, rendering the sentence illegal. We

affirm.



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*
    Retired Senior Judge assigned to the Superior Court.
1
    75 Pa.C.S.A. §§ 1543(b)(1), 1786(f), and 3742.1(a), respectively.
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       On January 17, 2013, Appellant entered an open guilty plea to the

charges resulting from a January 17, 2012 motor vehicle accident. On July

11, 2013, the sentencing court sentenced Appellant to sixty days in a county

intermediate punishment program, a probationary term of five years, and

restitution of $30,487.43 inter alia.          (See Order of Sentence, 7/11/13;

Restitution Order, 1/17/13).        Appellant timely appealed on September 27,

2013.2

       Appellant raises the following question for our review:

       Did the sentencing court below impose an illegal sentence upon
       Appellant when it ordered him to pay over $30,000 in restitution
       without first determining that he possessed the financial ability
       to pay such an amount?
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2
  Appellant wrote plea counsel several letters in August 2013 requesting that
he file an appeal. On August 29, 2013, counsel filed a motion to withdraw
as counsel and requested that the court appoint counsel to represent
Appellant in any post-sentencing matters. The court immediately granted
the motion, appointed the Allegheny County Public Defender’s Office as
Appellant’s counsel, and granted Appellant the right to appeal nunc pro tunc
within thirty days. (See Order, 8/29/13).

      On September 18, 2013, Appellant filed a counseled motion requesting
the court to modify its August 29, 2013 order to characterize prior counsel’s
motion to withdraw as counsel as being both a motion to withdraw as
counsel and a petition for post-conviction collateral relief seeking
reinstatement of Appellant’s direct appeal rights.      The court granted
Appellant’s motion on October 1, 2013, ordered him to file an appeal, and
granted him leave to proceed in forma pauperis. (See Order, 10/1/13).

      On October 2, 2013, Appellant filed an amended appeal to correct his
middle initial from “R” to “M.” Pursuant to the court’s October 4, 2013
order, Appellant filed a Rule 1925(b) statement on October 9, 2013. The
court entered its Rule 1925(a) opinion on December 9, 2013. See Pa.R.A.P.
1925.



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(Appellant’s Brief, at 3).

      Our standard of review is well-settled:

            A claim that implicates the fundamental legal authority of
      the court to impose a particular sentence constitutes a challenge
      to the legality of the sentence. If no statutory authorization
      exists for a particular sentence, that sentence is illegal and
      subject to correction. An illegal sentence must be vacated.
      When the legality of a sentence is at issue on appeal, our
      standard of review is de novo and our scope of review is plenary.

Commonwealth v. Catt, 994 A.2d 1158, 1160 (Pa. Super. 2010) (citations

and quotation marks omitted).

      Appellant   claims     that   the   sentence   awarding   over   $30,000   in

restitution as a condition of his probation was illegal when the court did not

inquire into his financial ability to pay that amount. (See Appellant’s Brief at

9-13). We disagree.

      The relevant portions of the statutes at issue are as follows:

      (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:




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     (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 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.

18 Pa.C.S.A. § 1106.

     (a) General rule.—In imposing an order of probation the court
     shall specify at the time of sentencing the length of any term
     during which the defendant is to be supervised, which term may
     not exceed the maximum term for which the defendant could be
     confined, and the authority that shall conduct the supervision.

     (b) Conditions generally.—The court shall attach such of the
     reasonable conditions authorized by subsection (c) of this section
     as it deems necessary to insure or assist the defendant in
     leading a law-abiding life.

     (c)   Specific conditions.—The court may as a condition of its
     order require the defendant:

                               *   *     *

     (8) To make restitution of the fruits of his crime or to make
     reparations, in an amount he can afford to pay, for the loss or
     damage caused thereby.

42 Pa.C.S.A. § 9754.

     Restitution is a creature of statute . . . [w]here that statutory
     authority exists, however, the imposition of restitution is vested
     within the sound discretion of the sentencing judge.

          In the context of a criminal case, restitution may be
     imposed either as a direct sentence . . . or as a condition of
     probation. . . .

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

omitted).   However, “restitution must be determined at the time of



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sentencing    if   the   restitution   is   imposed   as   a   direct   sentence.”

Commonwealth v. Deshong, 850 A.2d 712, 713 (Pa. Super. 2004).

      Moreover, an appellant, “[h]aving agreed to pay restitution . . . cannot

now raise the question of his ability to pay.” Commonwealth v. Gardner,

632 A.2d 556, 557 (Pa. Super. 1993), appeal denied, 652 A.2d 835 (Pa.

1994).

      During the guilty plea proceedings, the trial judge indicated, without

objection, “[a]nd then, the restitution amount has been agreed to, and I

have signed that order today, in the amount of $30,487.43, $29,587.43 to

AMCO insurance and $900 to [victim].” (N.T. Guilty Plea Hearing, 1/17/13,

at 23).

      In his brief, Appellant argues that the $30,487.43 in restitution was a

probation sentence that required the court to inquire into his financial ability

to pay that amount under 42 Pa.C.S.A. § 9754(c)(8). (See Appellant’s Brief

at 9-13).

      The record reflects that neither Appellant nor his counsel disputed the

imposition of restitution or the amount.        (See N.T. Guilty Plea Hearing,

1/17/13, at 23; N.T. Sentencing Hearing, 7/11/13, at 13; Trial Court

Opinion, 12/09/13, at 2). Moreover, Appellant did not “make any argument

regarding his ability to pay the restitution amount agreed upon” at either

hearing.    (Trial Ct. Op., at 7).     However, Appellant admits that he “was

aware that the judge was going to order that amount paid as restitution . . .

not that he agreed to pay it or that he could pay it.” (See Appellant’s Brief

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at 12, n.2). Therefore, we conclude that Appellant has waived the claim of

his ability to pay the restitution amount. See Gardner, supra at 557.

       Moreover, the record reflects that the restitution was a part of the

direct sentence.       (See Order of Sentence, 7/11/13; Restitution Order,

1/17/13).      The court sentenced Appellant to pay the full amount of

restitution both to the insurance company in the amount it previously

compensated the victim and to the victim for the balance of her loss. See

18 Pa.C.S.A. § 1106(c)(1)(i).

       Based upon our review of the record, we conclude that although

somewhat ambiguous,3 the trial court intended it to be a direct sentence of

restitution, and the court was, for this reason as well, not required to

determine Appellant’s financial ability to pay.   See id.   Appellant’s issue

lacks merit.

       Therefore, the court properly sentenced Appellant to pay $30,487.43

in full restitution to the victim and the insurance company, and making

complete compliance with that direct sentence a condition of his early

release from probation. See 18 Pa.C.S.A. § 1106(b). Accordingly, Appellant

received a legal sentence. See Catt, supra at 1160.

       Judgment of sentence affirmed.



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3
  The Commonwealth concedes that the record is ambiguous.               (See
Commonwealth’s Brief, at 9).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/26/2014




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