J-A31035-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

NORMA JEAN HOLMES

                         Appellant                  No. 305 MDA 2014


               Appeal from the Order dated January 21, 2014
         In the Court of Common Pleas of the 39th Judicial District
                            Fulton County Branch
             Criminal Division at No: CP-29-CR-0000103-2012


BEFORE: BOWES, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                     FILED FEBRUARY 18, 2015

     Appellant Norma Jean Holmes appeals from the January 21, 2014

order of the Court of Common Pleas of the 39th Judicial District, Fulton

County Branch (trial court), which affirmed its prior order           denying

Appellant’s request to modify the amount of restitution imposed at

sentencing.    For the reasons set forth below, we reverse the trial court’s

January 21, 2014 order and remand this matter to the trial court for further

proceedings.

     The facts and procedural history in this case are uncontroverted. On

December 2, 2011, Trooper Roger Sheffield of the Pennsylvania State Police

charged Appellant with, inter alia, recklessly endangering another person

(REAP) under Section 2705 of the Crimes Code, which provides “[a] person

commits a misdemeanor of the second degree if he recklessly engages in
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conduct which places or may place another person in danger of death or

serious bodily injury.”   18 Pa.C.S.A. § 2705.      In the complaint, Trooper

Sheffield alleged:
      [Appellant] . . . recklessly engage[d] in conduct which placed or
      may have placed [the victim] (Bryan S. Nave and all other
      drivers on the highway) in danger of death or serious bodily
      injury, that is to say [Appellant] . . . permit[ted] [the victim] to
      drive her vehicle knowing that he consume[d] at least 10 mixed
      drinks/beers[], in violation of Section 2705[.]

Criminal Complaint, 12/28/11, at 2.      Moreover, in his affidavit of probable

cause accompanying the complaint, Trooper Sheffield alleged:
            On 11/20/2011 at approx. 2015 hours, [Appellant] and
      [the victim] . . . stopped at the Greencastle American Legion for
      an alcoholic bevarage [sic] with [Appellant]. [Appellant] and
      [the victim] agreed to go to the Log Cabin Bar in Hancock,
      Maryland. While enroute [sic] to bar [the victim] stopped at a
      Liquor Store in Greencastle and purchased a pint of Captain
      Morgan Rum. [Appellant] made a mixed drink for both of them
      in the car while in the parking lot of the liquir [sic] Store. [The
      victim] then drove [Appellant] to the Log Cabin bar in
      [Appellant’s] 2000 Chevrolet Cavalier. [Appellant] stated “[the
      victim] drank shot after shot after shot of whiskey while at the
      bar.” [Appellant] stated [the victim] consumed approx. 10 plus
      drinks while at the bar. At approx. 0100 hours on 11/20/11 [the
      victim] and [Appellant] left the bar together in [Appellant’s] car.
      [The victim] drove the car after consuming numerous mixed
      drinks. [The victim] was traveling west on S[R] 70 at [mile
      marker number] 158 [at] 0135 hours while not licensed and lost
      control of the vehicle. [The victim] was killed in the accident.

Affidavit of Probable Cause, 12/28/11.

      On October 9, 2012, Appellant pleaded nolo contendere to the charge

of REAP and the Commonwealth nolle prossed the remaining charges. On

November 6, 2012, the trial court sentenced Appellant to twenty-four

months’ probation and imposed upon her restitution for $12,794.50 in

funeral expenses to be paid to the victim’s parents, Joseph and Laura Nave.

On July 31, 2013, Appellant filed a “Motion for Restitution Hearing.”

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Appellant attached to the motion a “Stipulation of Fact in Lieu of Hearing,”

which incorporated the December 21, 2011 witness statement form, and the

December 21, 2011, noncustodial written statement form filled out by

Appellant.     In the December 21, 2011, noncustodial written statement,

Appellant recalled that she told the victim that she did not drink and drive

because she did not want to risk losing her commercial driver’s license.

Noncustodial Written Statement, 12/21/11, at 2.

       In the motion, Appellant essentially asserted she should not have to

pay restitution to the victim’s parents, because the victim himself caused the

accident and, as a result, his own death by operating the vehicle under the

influence of alcohol.        Motion for Restitution Hearing, 7/31/13, at ¶ 11.

Moreover, Appellant asserted that had the victim survived, he would have

been ineligible for compensation under the Crime Victims Act (Act). 1       To

support this assertion, Appellant referred to a letter, dated October 26,

2012, authored by the Fulton County Victim Services Coordinator, Carolyn

Kerlin, which in part provided:
       The question of who was driving the vehicle is not being
       considered by th[e] [trial] court as it is not a Driving Under the
       Influence case. However, if a Victim Compensation Claim were
       filed, there is no doubt in my mind that [the Victim
       Compensation Assistance Program (VCAP)2] would view it as a
____________________________________________

1
   Act of November 24, 1998, P.L. 882, as amended, 18 P.S.
§§ 11.101-.5102.
2
  VCAP is the programmatic entity that considers claims for compensation
and distributes compensation when a claim under Chapter 7 of the Act, 18
P.S. §§ 11.701–.710, which establishes an administrative mechanism for
compensating victims of crime, is approved.



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       DUI case when determining [the victim’s] eligibility for
       compensation. In making my recommendation for restitution I
       have inquired of [VCAP] as to how they might proceed if a claim
       were filed. Their answer includes the following: “If the victim
       was driving, or the evidence seems to support that he was, then
       the claim would be denied since he was driving a vehicle while
       intoxicated, which is against the law and directly caused his
       death. However, if [VCAP] would decide a preponderance of the
       evidence suggests that he was not driving, we would, most
       likely, assess 25% for knowingly and willingly getting into a car
       driven by a driver who was under the influence. To make that
       decision, [VCAP] would look at the police report and most likely
       reach out and speak to the investigating offer, then weigh all the
       evidence.”

Fulton County Victim Services Letter, 10/26/12, at 1-2.              Based on the

foregoing assertions, Appellant claimed “[j]ust as [the victim] could not,

neither   his   estate    nor    his   Personal   Representatives   should   receive

compensation for [the victim’s] own criminal conduct.”                  Motion for

Restitution Hearing, 7/31/13, at ¶ 12.

       On October 29, 2013, the trial court issued an order, denying

Appellant’s request to modify, i.e., to dispense with, the restitution imposed.

In so doing, the trial court noted it imposed restitution under Section

1106(a) of the Crimes Code3 and Section 9754(c)(8) of the Sentencing

Code.4 See Trial Court Order, 10/29/13 (“Even if the sentence of probation

did not rise to the level of direct causation, the restitution would easily fall

under the standard of restitution as condition of [Appellant’s] probation.”).

Section 1106 of the Crimes Code provides in pertinent part:

____________________________________________

3
 Act of June 18, 1976, P.L. 394, as amended, 18 Pa.C.S.A. § 1106(a).
4
  Act of December 30, 1974, P.L. 1052, as amended, 42 Pa.C.S.A.
§ 9754(c)(8).



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     (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.
      ....
     (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. . . .
           (ii) If restitution to more than one person is set at
           the same time, the court shall set priorities of
           payment. However, when establishing priorities, the
           court shall order payment in the following order:
               (A) The victim.
               (B) The Crime Victim’s Compensation Board.
               (C) Any other government agency which has
               provided reimbursement to the victim as a
               result of the defendant’s criminal conduct.
               (D) Any insurance company which has
               provided reimbursement to the victim as a
               result of the defendant’s criminal conduct.
        (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.
      ....
     (h) Definitions.--As used in this section, the following words
     and phrases shall have the meanings given to them in this
     subsection:

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           “Crime.” Any offense punishable under this title or by a
           magisterial district judge.
           “Injury to property.” Loss of real or personal property,
           including negotiable instruments, or decrease in its value,
           directly resulting from the crime.
           “Offender.” Any person who has been found guilty of any
           crime.
           “Personal injury.” Actual bodily harm, including
           pregnancy, directly resulting from the crime.
             ....
           “Victim.” . . . 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(a), (c), (h) (emphasis added).

      Section 9754 of the Sentencing Code, relating to an order of

probation, provides in part:
      (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(c)(8) (emphasis added).

      On     November    21,   2013,   Appellant   filed   an   “Application   for

Reconsideration of the [Trial] Court’s October 29, 2013 Order Denying

Request for Modification of Restitution.” In asking the court to reconsider its

October 29, 2013 order, Appellant repeated her assertion that the victim’s

death was caused by his own actions, i.e., operating the vehicle under the

influence of alcohol, as opposed to Appellant’s conduct, i.e., giving the victim

permission to operate the vehicle. Moreover, Appellant argued that the trial

court did not impose restitution as a condition of probation under Section

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J-A31035-14



9754(c)(8), as evidenced by the lack of specificity in the written sentencing

order. Finally, Appellant argued in the event restitution was proper under

Section 1106(a), then the trial court “may be required to apportion the

victim’s damages if [Appellant] was not the sole cause of the victim’s

injuries.”     Reconsideration Motion, 11/21/13, at ¶ 14.         In this regard,

Appellant argued “[t]he record does not support the determination that

[Appellant’s] actions were the sole or direct cause of [the victim’s] death.”

Id. at ¶ 15.

      On     November    26,   2013,   the   trial   court   granted   Appellant’s

reconsideration motion. On January 21, 2014, the trial court issued an order

affirming its October 29, 2014 order.         In so affirming, the trial court

specifically disagreed with Appellant’s assertion that the court did not impose

restitution as a condition of probation. The trial court noted:
      After review of the [o]rder of November 6, 2012, we conclude
      that [o]rder specifically calls for a 24 month sentence of
      probation and language requiring [Appellant] to pay restitution
      in the amount of $12, 794.50 to Joseph and Laura Nave. It is of
      no consequence that the directive to pay restitution did not fit
      into the special conditions section of the formatted [written]
      sentencing order. The [o]rder clearly directs restitution as a
      condition of probation.

Trial Court Order, 1/21/14, at ¶ 4. The trial court also concluded that the

issue of apportionment of restitution was waived by Appellant, because she

raised it for the first time in her reconsideration motion. See id. at ¶ 2.

      Appellant filed a timely appeal to this Court.         Following Appellant’s

filing of a Pa.R.A.P. 1925(b) statement, the trial court issued a Pa.R.A.P.

1925(a) opinion on April 28, 2014.      In its Rule 1925(a) opinion, the trial


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court first addressed Appellant’s assertion that her conduct was not the

direct cause of the victim’s death and, as a result, the imposition of

restitution under Section 1106(a) was in error. Disagreeing with Appellant,

the trial court observed:
            In the instant matter, [Appellant] recklessly endangered
      the victim by allowing the victim to drive [Appellant’s] vehicle
      after [the victim had] consum[ed] numerous alcoholic
      beverages. Recklessness is defined as a conscious disregard of a
      known risk of death or great bodily harm to another person.
      Because [Appellant] knew that the victim had consumed
      numerous alcoholic beverages, she disregarded a known risk of
      death or great bodily harm to the victim by allowing him to drive
      while intoxicated. As a direct result of her conscious disregard of
      the known risk of death or great bodily harm caused by driving
      while under the influence, the victim died. Therefore, the loss in
      the instant matter, the funeral costs and expenses of the victim,
      were the direct result of [Appellant’s] reckless endangerment of
      another person.

Trial Court Opinion, 4/28/14, at 3 (internal citations omitted).

      The trial court also reiterated its disagreement with Appellant’s

assertion that the court did not impose restitution as a condition of probation

under Section 9754(c)(8) of the Sentencing Code.         Specifically, the trial

court pointed to the sentencing transcript to demonstrate that it indeed had

imposed restitution as a condition of probation. According to the trial court,

restitution in this case satisfied both Section 1106(a) of the Crimes Code and

Section 9754(c)(8) of the Sentencing Code.

      Lastly, the trial court addressed Appellant’s contention that it erred in

failing to assess her ability to pay under Section 9754(c)(8).     Disagreeing

with Appellant’s contention, the trial court noted that under Pa.R.Crim.P. 706

and Commonwealth v. Childs, 63 A.3d 323, 326 (Pa. Super. 2013), it was



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not required to assess Appellant’s ability to pay prior to imposing restitution

as a condition of probation. Trial Court Opinion, 4/28/14, at 5.

        On appeal,5 Appellant raises four issues for our review.6            First,

Appellant argues the trial court erred in imposing restitution as a direct

sentence under Section 1106(a) of the Crimes Code because Appellant’s

criminal conduct was not the direct cause of the victim’s death.        Second,

Appellant argues the trial court erred in failing to apportion the amount of

____________________________________________

5
  It is firmly established that questions implicating the trial court’s authority
to impose restitution concern the legality of sentence and, as such, pose
questions of law over which we exercise plenary review. Commonwealth
v. Hall, 80 A.3d 1204, 1212 (Pa. 2013).
6
    Appellant framed the issues in her brief as follows:
        1. Did the court err by finding that restitution was imposed as a
        condition of probation and applying an indirect causation
        standard under [Section 9754(c)(8)] when the sentencing
        proceedings did not indicate that it was a condition of probation
        and the court did not make a determination regarding what loss
        had been caused by [Appellant] and/or the amount [Appellant]
        could afford to pay?
        2. If restitution was ordered as a condition of probation, did the
        court err by failing to make a determination under [Section
        9754(c)(8)] regarding the loss or damage caused by [Appellant]
        or assess [Appellant’s] ability to pay restitution?
        3. Did the court err by finding that restitution was proper as a
        direct sentence under [Section 1106(a)] when the funeral and
        memorial costs for the victim, on which the restitution was
        based, were not the direct result of [Appellant’s] reckless
        endangerment of the victim and [Appellant] was not held
        criminally liable for causing the accident in which the victim was
        killed?
        4. Did the court err when it failed to consider the extent of the
        victim’s injury and the damage caused by [Appellant’s] conduct
        and to apportion restitution when [Appellant’s] actions were not
        the sole cause of the victim’s injuries?
Appellant’s Brief at 8-9.



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J-A31035-14



restitution imposed under Section 1106(a), because Appellant’s criminal

conduct was not the sole cause of the victim’s death.         Third, Appellant

argues that, contrary to the trial court’s claim, it did not impose restitution

as a condition of probation under Section 9754(c)(8) of the Sentencing

Code. Finally, Appellant argues, to the extent restitution was ordered under

Section 9754(c)(8), the trial court erred in complying with the requirements

of Section 9754(c)(8) when it failed to determine the loss caused by

Appellant’s actions       and assess Appellant’s ability to   pay restitution.

Appellant’s Brief at 8-9.

       “It is generally agreed that 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 a sentence.” Commonwealth v.

Harner, 617 A.2d 702, 704 (Pa. 1992) (citation omitted); see also

Commonwealth v. Barger, 956 A.2d 458, 464 (Pa. Super. 2008) (noting

for a court to impose a sentence of restitution, it must have statutory

authority to do so), appeal denied, 980 A.2d 109 (Pa. 2009). Restitution

may be imposed in several situations, including, as applied in this case, as

part of a direct sentence under Section 1106(a) of the Crimes Code, or as a

condition of probation under Section 9754(c)(8) of the Sentencing Code.7

____________________________________________

7
  Other settings also permit the imposition of restitution, including as a
condition of parole, 18 Pa.C.S.A. § 1106(b), as a condition of intermediate
punishment, 42 Pa.C.S.A. § 9763(b)(10), or as an order by the magisterial
district judge, 18 Pa.C.S.A. § 1106(d).



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The importance of the differences between the statutory authorities is that

restitution imposed under Section 1106 requires “a direct causal connection

between the crime and the loss.” Commonwealth v. Harriott, 919 A.2d

234, 238 (Pa. Super. 2007), appeal denied, 934 A.2d 72 (Pa. 2007). In

contrast, restitution imposed as a condition of probation does not require a

“direct nexus between [the] offense and [the] loss . . . .        [A]n indirect

connection between the criminal activity and the loss is sufficient.” Id.

      Although restitution is penal in nature, it is highly favored in the law

and is encouraged so that the defendant will understand the egregiousness

of her conduct, be deterred from repeating her conduct, and be encouraged

to live in a responsible way.    See Commonwealth v. Brown, 981 A.2d

893, 895-96 (Pa. 2009) (internal citation omitted). It is settled, therefore,

that the “primary purpose of restitution is rehabilitation of the offender by

impressing upon [her] that [her] criminal conduct caused the victim’s loss or

personal injury and that it is [her] responsibility to repair the loss or injury

as far as possible.”   Id. at 895; accord Commonwealth v. Kinnan, 71

A.3d 983, 986 (Pa. Super. 2013) (citation omitted).

      We now turn to Appellant’s first argument that, under Section

1106(a), the direct cause of the victim’s death was his operating the vehicle

under the influence of alcohol and not Appellant’s criminal conduct.        We

need not address this issue, because even if Appellant’s first argument is

valid, the trial court lacked the authority to award restitution to the victim’s

parents under Section 1106(a) of the Crimes Code.        It is well-settled that

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“[t]he mandatory payment of restitution pursuant to Section 1106 . . . is

limited to the direct victim and not to third parties, including family

members,      who   shoulder   the     burden   of   the   victim’s   losses.”

Commonwealth v. Langston, 904 A.2d 917, 924 (Pa. Super. 2006)

(citation omitted) (emphasis added). The Langston court noted that “the

decedent’s son . . . was not a ‘direct victim’ of the crime entitled to

restitution under Section 1106[,]” because Section 1106 “requires that a

victim’s loss be caused directly by a defendant’s criminal conduct rather than

a loss consequential to such conduct.” Id. at 923. We further noted that

although the son “was in utero at the time of the accident, there was no

evidence presented that he suffered any physical injuries as a result of

appellant’s [criminal] conduct.” Id. In Hall, our Supreme Court observed

that a restitution award to the homicide victim’s children was improper

because they did not meet the narrow definition of victim under Section

1106.   Hall, 80 A.3d at 1213-14.     The court also observed the trial court

could have awarded restitution only to the victim or his estate, which, as the

record evidence revealed, was never established in that case. Hall, 80 A.3d

at 1213 (observing that “[i]n this case involving a homicide, obviously, the

victim himself is deceased and cannot receive restitution.       There is no

indication that an estate was ever established on behalf of the victim, which

could theoretically receive an award of restitution directed to the victim

himself.”).   Here, consistent with Langston and Hall, we conclude the

victim’s parents do not qualify as victims under Section 1106(a) of the

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Crimes Code. Accordingly, the trial court erred in imposing restitution (for

funeral) upon Appellant as a direct sentence under Section 1106(a).

      We need not address Appellant’s second argument. As stated earlier,

Appellant argues the trial court erred in failing to apportion the amount of

restitution imposed under Section 1106(a), because her criminal conduct

was not the sole cause of the victim’s death.        Appellant’s Brief at 25-27.

Based on our conclusion that the trial court did not have authority to order

restitution under 1106(a) of the Crimes Code, we need not address the

merits of this apportionment argument.           Likewise, we need not address

whether Appellant preserved this argument when she raised it for the first

time in her reconsideration motion.

      We next turn to Appellant’s third argument that the trial court did not

impose restitution as a condition of probation under Section 9754(c)(8) of

the   Sentencing   Code.      In   particular,    Appellant   argues,   and   the

Commonwealth agrees, that the trial court ordered restitution only under

Section 1106(a), because the written sentencing order does not specifically

indicate that restitution in this case was issued as a condition of probation

under Section 9754(c)(8). We disagree.

      First, contrary to Appellant’s argument that the restitution at issue is

not a condition of probation, the trial court expressly noted, inter alia, in its

October 29, 2013 order that restitution in the matter sub judice “would

easily fall under the standard of restitution as condition of [Appellant’s]

probation.”   Trial Court Order, 10/29/13, at 3.       Second, we observe the

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written sentencing order form at issue here is poorly formatted. The order

form separates special conditions from financial obligations, which include

restitution, court costs, and fines. In its order affirming its October 29, 2013

order, the trial court recognized this formatting issue.      See Trial Court

Order, 1/21/14, at ¶ 4 (“It is of no consequence that the directive to pay

restitution did not fit into the special conditions section of the formatted

[written] sentencing order.     The [o]rder clearly directs restitution as a

condition of probation.”). Finally, the trial court’s statements at sentencing

support its conclusion that restitution was ordered as a condition of

probation under Section 9754(c)(8). See Trial Court Order, 1/21/14, at 4;

Trial Court Rule 1925(a) Opinion, 4/28/14, at 5.       At sentencing, the trial

court stated:

      You’re placed on probation for a period of 24 months, pay the
      court costs, pay $200 to the Fulton County Law Library. You’ll
      undergo a drug and alcohol assessment and follow any
      recommendations for treatment, 50 hours of community service.
      You may not consume alcohol or any controlled substance and
      you’ll subject to random testing to insure compliance with that
      condition. You’ll pay the restitution as determined by the district
      attorney and, of course, there’s an issue with that that the
      courts with deal with at some point, and finally you have a
      supervision fee of $25 per month to defray the cost of the
      supervision that the court has ordered in this case.

N.T. Sentencing, 11/5/12, at 9-10. As the sentencing transcript indicates,

the court sentenced Appellant to 24 months’ probation, and immediately

thereafter, the court listed the conditions of Appellant’s probation, which

included the restitution at issue.   Accordingly, when we consider the trial

court’s October 29, 2013 and January 21, 2014 orders, its Rule 1925(a)



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J-A31035-14



opinion, the written sentencing order, and the sentencing transcript, we find

no basis upon which to disagree with the trial court’s claim that it imposed

restitution upon Appellant as a condition of probation under Section

9754(c)(8).   Cf. Commonwealth v. Popow, 844 A.2d 13, 19-20 (Pa.

Super. 2004) (noting that the language of the oral sentence did not indicate

that the trial court ordered restitution under Section 9754(c)(8)).

      We now address Appellant’s fourth and final argument that, if Section

9754(c)(8) applies sub judice, the trial court erred in complying with the

requirements of Section 9754(c)(8) when it failed to assess Appellant’s

ability to pay restitution. We agree. As we have explained:

      When restitution is imposed as a condition of probation under
      Section 9754, the required nexus between the defendant’s
      criminal conduct and the victim’s loss is relaxed. However, there
      must be at least an indirect connection between the criminal
      activity and the loss. Additionally, “to 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.” Finally, where a sentencing court imposes
      restitution as a probationary condition, subsection 9754(c)(8)
      obligates the court to determine what loss or damage has been
      caused and what amount of restitution the defendant can afford
      to pay.

Kinnan, 71 A.3d at 987 (emphasis added); see Harner, 617 A.2d at 707

(noting that under Section 9754, the sentencing court has an obligation to

“determine what loss or damage has been caused, and what amount of

restitution [the defendant] can afford to pay, and how it should be paid”).

      Our review of the record here does not indicate that the trial court

complied with the requirements of Section 9754(c)(8).       The trial court did

not determine on the record whether Appellant was able to pay the amount


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of restitution imposed. See Commonwealth v. Karth, 994 A.2d 606, 608

(Pa. Super. 2010) (noting that under Section 9754(c)(8) restitution is to be

imposed only in an amount the defendant can afford to pay) (quotation

marks and citation omitted).

      As noted above, the trial court relied on Rule 706 or Childs to support

its decision not to assess Appellant’s ability to pay under Section 9754(c)(8)

prior to imposing restitution.   Such reliance, however, is misplaced. First,

Rule 706 does not apply to orders of restitution, but pertains only to fines

and costs. Second, in Childs, the appellant did not challenge the amount of

restitution and restitution was not an issue on appeal. As this Court noted,

“[a]ppellant does not contest the amount that he was ordered to pay in

restitution or fines.   Instead, [a]ppellant argues that the trial court is

required to hold a hearing to determine a defendant’s ability to pay costs,

prior to imposing such costs.” Childs, 63 A.3d at 325 (emphasis added).

Thus, applying Rule 706, we determined the trial court did not err in denying

appellant a hearing on his ability to pay costs. Id. at 326. We reasoned:

      Generally, a defendant is not entitled to a pre-sentencing
      hearing on his or her ability to pay costs. Commonwealth v.
      Hernandez, 917 A.2d 332, 336–37 (Pa. Super. 2007). While
      Rule 706 “permits a defendant to demonstrate financial inability
      either after a default hearing or when costs are initially ordered
      to be paid in installments,” the Rule only requires such a
      hearing prior to any order directing incarceration for failure to
      pay the ordered costs. Id. at 337.

Id. (emphasis in original). Accordingly, the trial court’s reliance on Rule 706

and Childs is inapposite in the instant matter.         To reiterate, Section



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9754(c)(8), which is at issue here, clearly requires a court to assess a

defendant’s ability to pay prior to imposing restitution.

      In sum, based on our conclusions above, we reverse the trial court’s

January 21, 2014, order and remand this matter to the court to vacate its

November 5, 2012 restitution order and to conduct a new sentencing

hearing, consistent with this decision, limited to an assessment of

Appellant’s ability to pay the restitution imposed under Section 9754(c)(8) of

the Sentencing Code.

      Order reversed. Cased remanded. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/18/2015




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