J-S20007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LOWELL TRASHAWN FOSTER,                    :
                                               :
                       Appellant               :   No. 1170 MDA 2017


        Appeal from the Judgment of Sentence entered May 12, 2017,
             in the Court of Common Pleas of Lancaster County,
            Criminal Division at No(s): CP-36-CR-0004554-2016.


BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                              FILED JUNE 07, 2018

       Lowell Trashawn Foster appeals from the denial of his motion to modify

restitution following Foster’s open guilty plea to false identification to law

enforcement, possession of a small amount of marijuana, possession of drug

paraphernalia and receiving stolen property.1 After careful review, we vacate

Foster’s restitution order and remand for resentencing.

       The trial court summarized the facts of this case as follows:

             On May 12, 2017, [Foster] pled guilty to one (1) count
          each of false identification to law enforcement, possession
          of a small amount of marijuana, possession of drug
          paraphernalia and receiving stolen property. The facts
          underlying the charges are that on August 24, 2016,
          [Foster] was found in possession of a stolen motor vehicle.
          [Foster] acknowledges that the vehicle had been reported
          stolen since August 16, 2016. [Foster] provided a false
____________________________________________


118 Pa. C.S.A. § 4914(a), 35 P.S. § 780-113(a)(31), 35 P.S. § 780-
113(a)(32), and 18 Pa.C.S.A. § 3925(a), respectively.
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       name to law enforcement authorities and was found to be
       in possession of under thirty (30) grams of marijuana and a
       liter bottle that had been fabricated into a pipe device. At
       the time of [Foster’s] guilty plea and sentencing, [Foster]
       acknowledged that these were the facts to which he was
       pleading guilty.

          The Guilty Plea signed by [Foster] on May 12, 2017
       specified that the amount of restitution owed was
       [$10,286.11]. [Foster] acknowledged the agreed upon
       amount of restitution at the time of his plea and sentencing.
       The remainder of [Foster’s] sentence was left to the
       discretion of the undersigned judge as an open plea. The
       Commonwealth did not object to [Foster’s] request for an
       aggregate three (3) year probationary sentence that would
       permit [Foster] to be transported to a state correctional
       institution so that he could begin serving a sentence of
       incarceration in an unrelated matter.

          [Foster] was sentenced, as requested, to concurrent
       sentences of three (3) years of probation, which were made
       consecutive to his sentence of incarceration on the
       unrelated matter. The agreed upon restitution was ordered
       to be paid as outlined in the Restitution Summary offered
       by the Commonwealth and made a part of the record. It
       was further ordered and noted that [Foster’s] sentence was
       fashioned in a way that would enforce the agreed upon
       restitution amount and that [Foster’s] probation could be
       terminated once the agreed upon restitution was paid in full.
       The Restitution Summary indicated that [$1,157.74] was
       due and owing to Stephen or Ann Brill for the costs of their
       deductible, rental vehicle expenses and stolen items from
       their vehicle. It also indicated that [$9,128.37] was due
       and owing to Erie Insurance for a claim of vehicle damages.
       [Foster] did not file a timely post-sentence motion and did
       not file an appeal.

          On May 24, 2017, [Foster] filed his Motion to Modify
       Restitution raising, for the first time, an objection to the
       order of and amount of restitution. Said Motion made no
       request for a hearing and did not raise the issue of any new
       facts or evidence, but merely stated that restitution was
       improper because the vehicle was ultimately returned. The
       Commonwealth responded to said Motion on June 26, 2017
       and [Foster’s] Motion to Modify Restitution was denied by

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         the May 25, 2017 Order. [Foster] filed his Notice of Appeal
         on July 26, 2017.

Trial Court Opinion, 9/20/2017, at 1-4 (internal footnotes omitted).     This

timely appeal followed. Both Foster and the trial court have complied with Pa.

R.A.P. 1925.

      Foster raises the following question on appeal:

         Did the trial court err in denying the Motion to Modify
         Restitution where the restitution ordered was illegal; and
         where the Commonwealth produced no explanation as to
         how Mr. Foster owed restitution of $10,286.11, nor was
         there any nexus between Mr. Foster’s crime and the alleged
         restitution due?

Foster’s Brief at 5.

            Foster asserts two arguments as to the legality of his sentence.

First, he contests that there is no causal connection between the amount of

restitution and the crimes he was convicted of. Second, he argues that the

record lacked evidence to support the restitution imposed upon him.

      We begin by noting our standard of review:

         In the context of criminal proceedings, an order of
         restitution is not simply an award of damages, but, rather,
         a sentence. An appeal from an order of restitution based
         upon a claim that a restitution order is unsupported by the
         record challenges the legality, rather than the discretionary
         aspects, of sentencing. The determination as to whether the
         trial court imposed an illegal sentence is a question of law;
         our standard of review in cases dealing with questions of law
         is plenary.

Commonwealth v. Stradley, 50 A.3d 769, 771-72 (Pa. Super. 2012). The

trial court reasoned that because Foster failed to contest the order of


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restitution during his guilty plea and sentencing, or in a timely post-sentence

motion, he waived any right to appeal the restitution order. Upon entry of a

guilty plea, a defendant only waives his right to challenge all claims and

defenses other than jurisdictional defects, the validity of the plea, and the

legality of the sentence. Commonwealth v. Eisenberg, 98 A.3d 1268, 1275

(Pa. Super. 2014). “Challenges to the legality of a sentence are not waivable.”

Commonwealth v. Burewell, 58 A.3d 790, 792 (Pa. Super. 2012). Foster

is challenging the legality of his sentence and therefore, his appeal is proper.

      Pennsylvania’s Restitution Statute, Section 1106(a), of the Criminal

Code, provides in part that:

         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, . . . the offender shall be sentenced to make
         restitution in addition to the punishment prescribed
         therefor.

18 Pa.C.S.A. § 1106(a) (emphasis added). Hence, “restitution is proper only

if there is a direct causal connection between the crime and the loss.”

Commonwealth v. Harriot, 919 A.2d 234, 238 (Pa. Super. 2007). Where

restitution is a condition of the judgment of sentence, as it is here, the victim’s

loss must flow from the defendant’s conduct that formed the basis of the

crimes he was convicted for. Id. The sentencing court applies a “but for” test

when imposing restitution; but for the defendant’s criminal conduct, the loss

the victim suffered as a direct result of the crime would not have occurred.

Commonwealth v. Wright, 722 A.2d 157, 159, (Pa. Super. 1998).

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      The trial court determined that Foster was in possession of a stolen

vehicle. Trial Court Opinion, 9/20/17, at 7.

      A person commits the offense of receiving stolen property if he:

         Intentionally receives, retains, or disposes of movable
         property of another knowing that it has been stolen, or
         believing that it has probably been stolen, unless the
         property is received, retained or disposed with intent to
         restore it to the owner.

18 Pa.C.S.A. § 3925(a).

      In light of finding Foster guilty of this offense, the court then presumed

that the missing items from the vehicle and the damage to the vehicle, were

a direct result of Foster’s unlawful possession of it. Id. We note that Foster

was not convicted for any crime associated with damaging the vehicle or

stealing items from it. Nonetheless, he was ordered to make restitution as if

he had been convicted of such crimes. This was improper.

      For example, in Commonwealth v. Poplawski, 158 A.3d 671, 674-75

(Pa. Super 2017) the defendant was convicted solely for home improvement

fraud, when he received $2,000 for services he never performed. The trial

court, however, imposed $41,637.00 in restitution as if the defendant had

been convicted of “deceptive or fraudulent business practices” even though

defendant was acquitted of that crime. This Court reversed that order because

the restitution was neither a direct result of defendant’s criminal conduct, nor

supported by the record. Id. See also Commonwealth v. Reed, 543 A.2d




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587 (Pa. Super. 1988) (reversing a restitution order of $12,000 when the

defendant only possessed $480 of stolen property).

      Here, although the victims claim total losses of $10,286.11, the amount

ordered in restitution, there was no evidence or admission that defendant

caused those losses. The facts merely showed that the car was stolen on

August 16, 2016 and Foster possessed that car eight days later on August 24,

2016. Foster pled guilty only to receiving stolen property (i.e. the car). In

doing so, he admitted to conduct consistent with that crime; he did not make

any further admissions about the missing items or the damage to the vehicle.

      The trial court ordered the entirety of the loss as restitution based on

speculation that the vehicle’s damage occurred while in Foster’s possession

and the he was responsible for the missing items. Absent further evidence to

support a finding that Foster had a hand in these crimes, ordering Foster to

make recompense for these losses was improper. See Commonwealth v.

Dohner, 725 A.2d 822, 824 (Pa. Super. 1999) (holding that restitution is a

sentence, and as such, the amount ordered must be supported by the record,

and it cannot be either speculative or excessive).

      In its 1925(a) opinion, the trial court justified ordering the full amount

of the loss because Foster agreed to it. The court noted that “though the

parties did not bargain for a specific sentence, the Guilty Plea signed by

[Foster] and the transcript from [Foster’s] sentencing make clear that the

amount of restitution was a specific term agreed upon by the parties.” Trial

Court Opinion, 9/20/17, at 5. The Commonwealth similarly argued that Foster

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knowingly, voluntarily and intelligently entered a plea by specifically

acknowledging the restitution figure and knowing that it would be included in

the sentence, therefore making the restitution order proper. Commonwealth’s

Brief at 8-10.   Both the trial court’s and Commonwealth’s positions are

unfounded. Foster may have “agreed upon” this amount of restitution, but

what Foster assented to was an illegal sentence because there was no causal

connection between the crime and the losses. “Our cases clearly state that a

criminal defendant cannot agree to an illegal sentence, so the fact that the

illegality was a term of his plea bargain is of no legal significance.”

Commonwealth v. Rivera, 154 A.3d 370, 381 (Pa. Super. 2017) (citation

omitted).

      The Commonwealth’s argument that the restitution was proper because

it was a term of probation is likewise without merit. The trial court ordered

restitution as a direct sentence, citing the restitution statute, 18 Pa.C.S.A. §

1106(a), as authority. See Trial Court Opinion, 9/20/2017, at 4. Thus, it was

clearly not a term of probation.

      In sum, the order imposing restitution in the amount of $10,286.11 was

illegal as there was no causal connection between this amount of restitution

and the crimes which Foster was convicted, and the record was devoid of any

evidence showing Foster was responsible for these damages.                 See

Poplawski, supra. Accordingly, we find that the trial court erred in imposing

its order of restitution in the amount of $10,286.11.




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     Judgment of sentence vacated.     Case remanded for resentencing in

accordance with this memorandum. Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/07/2018




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