J-S32018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

EARL FRANCIS DEMBY

                            Appellant                No. 2385 EDA 2015


              Appeal from the Judgment of Sentence July 9, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0003388-2012


COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

EARL FRANCIS DEMBY

                            Appellant                No. 2386 EDA 2015


              Appeal from the Judgment of Sentence July 9, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0006511-2014


BEFORE: BOWES, J., MUNDY, J., and PLATT, J.*

MEMORANDUM BY MUNDY, J.:                               FILED JULY 20, 2016

        Appellant, Earl Francis Demby, appeals from the July 9, 2015

aggregate judgment of sentence of two and a half to five years’ incarceration

plus restitution of $1,200.00, imposed following Appellant’s revocation from
____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
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prior intermediate punishment and parole sentences. After careful review,

we vacate the judgment of sentence and remand for further proceedings.

                    On August 8, 2012, [at CP-23-CR-0003388-
              2012, Appellant] pled guilty to Retail Theft (Count 1)
              and Criminal Conspiracy to Commit Retail Theft
              (Count 2)[1] and was sentenced to a term of
              incarceration of 6 to 23 months and two years’
              consecutive probation on Count 1 and one year
              consecutive probation on Count 2. When released,
              he was ordered to follow all rules and regulations of
              the Veterans Court Program. He failed to abide by
              those rules, so over the next few years [the trial
              court] entered various sanction orders, culminating
              in an order of April 16, 2015 requiring that
              [Appellant] use a Soberlink device for 90 days,
              attend group meetings and adhere to a treatment
              plan.

                     On December 18, 2014, [at CP-23-CR-
              0006511-2014,      Appellant]   pled    guilty    to
                                                            [2]
              Unauthorized Use of a Motor Vehicle (Count 1) and
              Retail Theft (Count 2) and was sentenced to 18
              months’ probation on Count 1 and 18 months’
              probation on Count 2, concurrent to Count 1. [The
              trial court] then entered various sanction orders,
              culminating in the same April 16, 2015 order
              requiring that [Appellant] use a Soberlink device,
              attend meetings, etc.

                    On June 23, 2015, the Lower Merion police
              department arrested [Appellant] and charged him
              with Retail Theft and Receiving Stolen Property. On
              July 6, 2015, the Upper Merion police department
              arrested [Appellant] and charged him with Retail
              Theft and Receiving Stolen Property.


____________________________________________
1
    18 Pa.C.S.A. §§ 3929(a)(1), and 903(c), respectively,
2
    18 Pa.C.S.A. § 3928(a).


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                    On July 8, 2015, the Adult Probation and
              Parole Services Department issued a Termination
              Hearing Report in which it recommended that
              [Appellant] be found in violation of parole, be
              terminated from the Veterans’ Court Program, and
              be resentenced. …

                     On July 9, 2015, [the trial court] conducted a
              termination hearing. … His counsel stipulated to the
              violations ….

                     In addition, the Assistant District Attorney
              advised the [trial court] that [Appellant] had
              absconded with the Soberlink device. She asked
              that any sentence include restitution. [Appellant]
              asserted that the County had retrieved it. During a
              short recess, the Soberlink provider advised that the
              device - valued at $1,200 - had not been returned.
              In response to [Appellant’s] insistence to the
              contrary, [the trial court] gave him 30 days to supply
              supporting evidence that the device was returned.
              [The trial court] then sentenced [Appellant] to [an
              aggregate term of incarceration of two and a half to
              five years3] and further ordered restitution to the
              County of Delaware in the amount of $1,200…. The
              sentencing sheet indicates that [Appellant] is not
              [Recidivism Risk Reduction Incentive (RRRI)4]
              eligible.

                   On July 20, 2015, defense counsel filed a
              motion for reconsideration of sentence in which he
____________________________________________
3
   Specifically, at CP-23-CR-0003388-2012, the trial court sentenced
Appellant for count one to back time of 311 days’ incarceration, and for
count two, a concurrent term of two and one half to five years’ incarceration.
At CP-23-CR-0006511-2014, the trial court sentenced Appellant for count
one, one to two years’ incarceration, and for count two, a concurrent term of
two and one half to five years’ incarceration. The sentences at CP-23-CR-
0006511-2014 were made concurrent to the sentences at CP-23-CR-
0003388-2012. N.T., 7/9/15, at 39-40.
4
    61 Pa.C.S.A. §§ 4501-4512.



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              argued that [the trial court] erred by: (a) denying
              [Appellant] RRRI eligibility, (b) incorrectly crediting
              the back time, and (c) imposing an inappropriately
              harsh sentence. … He also argued that the two
              subsequent arrests were for nonviolent crimes, so
              [Appellant] was RRRI eligible.

                    On August 6, 2015, defense counsel filed a
              Notice of Appeal [for each case] to the Superior
              Court.[5]

                      On August 25, 2015, [the trial court] signed an
              amended sentencing order in which it included the
              following: “Not RRRI Eligible, Restitution to be paid
              first.”[6]

Trial Court Opinion, 11/12/15, at 1-3 (citations omitted).7

       On appeal, Appellant raises the following issues for our review.

____________________________________________
5
 We consolidated Appellant’s appeals, sua sponte, on August 25, 2015. See
generally Pa.R.A.P. 513.
6
  Although the “amended sentencing order” is listed in the trial court docket
for CP-23-CR-0006511-2014, the order itself is not contained in the certified
record. We conclude the trial court was without jurisdiction on August 25,
2015 to amend the sentencing order. A trial court loses jurisdiction to
modify a sentencing order after 30 days or upon the filing of a notice of
appeal. 42 Pa.C.S.A. § 5505. An exception for the correction of patent
errors has been recognized. See Commonwealth v. Klein, 781 A.2d 1133,
1135 (Pa. 2001). However, “[t]his exception to the general rule of Section
5505 cannot expand to swallow the rule. … [W]e note that it is the
obviousness of the illegality, rather than the illegality itself, that triggers the
court’s inherent power.      Not all illegal sentences will be amenable to
correction as patent errors.” Commonwealth v. Holmes, 933 A.2d 57, 66-
67 (Pa. 2007). Instantly, we do not consider the trial court’s August 25,
2015 “amended sentencing order” to be a correction of a patent error. We
therefore conclude the August 25, 2015 order is void and of no legal effect.
See Id.
7
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.


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            [1.] Whether the restitution order is illegal because
            the County of Delaware, the putative beneficiary of
            $1,200.00 restitution for the loss of a taxpayer
            funded DUI enforcement device, is not a victim
            pursuant to the Crime Victims Act?

            [2.] Whether the Trial Court, which reversed itself
            and now agrees [Appellant] is RRRI eligible, erred
            when it docketed an “amended sentencing order” to
            add “Not RRRI eligible, restitution to be paid first,”
            on 2386 EDA 2015, 6511-2014?

Appellant’s Brief at 5.

      In each of Appellant’s issues, he raises a challenge to the legality of

his sentence.    “[Q]uestions implicating the trial court’s power to impose

restitution concern the legality of the sentence.” Commonwealth v. Hall,

80 A.3d 1204, 1211 (Pa. 2013).     Additionally, “[i]t is legal error to fail to

impose a RRRI minimum on an eligible offender. Separate from legal error,

… it is an illegal sentence to fail to impose a RRRI minimum….”

Commonwealth v. Tobin, 89 A.3d 663, 670 (Pa. Super. 2014).

            A challenge to the legality of a sentence … may be
            entertained as long as the reviewing court has
            jurisdiction. … An illegal sentence must be vacated.
            Issues relating to the legality of a sentence are
            questions of law[; as a result, o]ur standard of
            review over such questions is de novo and our scope
            of review is plenary.

Commonwealth v. Gentry, 101 A.3d 813, 816-817 (Pa. Super. 2014)

(internal quotation marks and citations omitted).




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      In his first issue, Appellant claims the trial court erred in awarding

restitution to the Commonwealth contrary to statutory authorization.

Appellant’s Brief at 13.

                   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 his
             sentence. Where 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, 18
             Pa.C.S.A. § 1106(a), or as a condition of probation
             under 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.

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

and footnote omitted).

      As related above, Appellant was previously subject to probationary and

intermediate punishment sentences, requiring him to use a Soberlink device.

See Trial Court Opinion, 11/12/15, at 1. Prior to Appellant’s resentencing,

the Commonwealth requested the trial court to order Appellant to pay

restitution because the Soberlink device had not been returned by Appellant.

N.T., 7/9/15, at 33, 35.     The trial court imposed a sentence, including a

directive to Appellant to pay $1,200.00 in restitution to Delaware County.

Id. at 40.

      Appellant argues that the restitution award is illegal, because Delaware

County is not a victim of Appellant’s underlying crimes. Appellant’s Brief at

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13-14, citing 18 P.S. § 11.103 (defining “victim” for the purposes of the

Crime Victim Act).       The awarding of restitution as part of a sentence is

authorized by statute as follows.

              § 1106. Restitution for injuries to person or
              property

              (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.

18 Pa.C.S.A. § 1106(a) (emphasis added).

       Instantly, the loss of the Soberlink device was not “a direct result” of

any of the crimes for which Appellant sentenced. Accordingly, we conclude

the trial court’s restitution award was not authorized by statue and is illegal. 8

See Kinnan, supra.9

____________________________________________
8
  The Commonwealth acknowledges that Delaware County is not a victim of
Appellant’s crimes, but argues that the value of the Soberlink device is
recoverable from Appellant as costs, and that we should affirm the
restitution award on that basis. Commonwealth’s Brief at 4; see also 42
Pa.C.S.A. § 9728. “Restitution compensates the victim for his loss and
rehabilitates the defendant by impressing upon him that his criminal conduct
caused the victim’s loss and he is responsible to repair that loss. Costs are a
reimbursement to the government for the expenses associated with the
criminal prosecution.” Commonwealth v. Rivera, 95 A.3d 913, 916 (Pa.
Super. 2014), quoting Commonwealth v. Wall, 867 A.2d 578, 583 (Pa.
Super. 2005) (citations omitted).
9
  The learned dissent illustrates that the sentencing court had legal bases for
requiring Appellant to reimburse the County for the loss of the Soberlink
(Footnote Continued Next Page)

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J-S32018-16


      Appellant next claims the trial court erred in determining he was not

eligible for an RRRI minimum sentence and that his sentence is therefore

illegal. Appellant’s Brief at 10. The trial court now concedes that Appellant’s

prior record and current offenses do not render him ineligible for an RRRI

minimum sentence.           Our review of the record reveals no disqualifying

convictions or any past or present violent behavior.       See generally 61

Pa.C.S.A. § 4503.        Consequently, we agree that the trial court erred in

failing to impose a RRRI minimum sentence and thereby entered an illegal

sentence.10 See Tobin, supra.


                       _______________________
(Footnote Continued)
device other than as restitution under Section 1106.            Concurring and
Dissenting Memorandum at 3-4, citing 42 Pa.C.S.A. § 9754. The Dissent
concedes that the Section 1106 basis relied on by the sentencing court
resulted in an illegal sentence. It nevertheless takes the position that we
may affirm the sentencing court on the basis of Section 9754. We disagree.
Section 1106 directs the sentencing court that a defendant “shall be
sentenced to make restitution” in appropriate cases. 18 Pa.C.S.A. § 1106(a)
(emphasis added). Section 9754 provides that a sentencing court “may as a
condition of its order require,” such rehabilitative conditions. 42 Pa.C.S.A. §
9754(c) (emphasis added). In this case the sentencing court erroneously
relied on Section 1106, which it deemed it was compelled to do. The
sentencing court did not exercise the discretion required of a decision to
impose conditions under Section 9754. It is not for this Court to exercise or
presume that discretion in the first instance. We would agree that there is
nothing in our disposition of this issue preventing the sentencing court from
revisiting the question of reimbursement on a proper basis on remand.
10
   To the extent the trial court and the Commonwealth urge us to affirm the
trial court’s attempt to make Appellant’s reimbursement of the value of the
Soberlink device a precondition to his eligibility for a RRRI minimum
sentence, we caution that on remand the trial court may not add
preconditions to Appellant’s RRRI eligibility or release. See generally Trial
Court Opinion, 11/12/15, at 4; Commonwealth’s Brief at 3.

(Footnote Continued Next Page)

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      Based on the foregoing, we conclude the sentence imposed by the trial

court is illegal based on its erroneous conclusion that Appellant was not RRRI
                       _______________________
(Footnote Continued)
     We note that for RRRI sentences, the Parole Board is the paroling
authority.

             Although the court imposes an RRRI Act minimum
             sentence, the offender is not guaranteed a right to
             be granted parole upon the expiration of that term.
             Instead, the Parole Board is tasked with issuing a
             decision to parole an offender upon completion of the
             RRRI Act minimum sentence only if the Parole Board
             independently determines that the offender has
             successfully completed the required recidivism risk
             reduction incentive or other similar program, as well
             as several other requirements (e.g., it does not
             reasonably appear that defendant presents risk to
             public safety).

Commonwealth v. Hansley, 47 A.3d 1180, 1188 (Pa. 2012) (citations
omitted, emphasis added). We have explained the respective paroling
authority between trial courts and the Parole Board as follows.

             The authority to parole convicted offenders is divided
             between the courts of common pleas and the
             Pennsylvania Board of Probation and Parole. When
             an offender is sentenced to a maximum term of
             imprisonment of less than two years, the common
             pleas court retains authority to grant and revoke
             parole; when the maximum term is two years or
             more, authority to grant parole is vested in the
             Parole Board.

Commonwealth v. Miller, 770 A.2d 362, 363 (Pa. Super. 2001) (internal
quotation marks and citations omitted); see also 61 Pa.C.S.A. § 6132
(defining the powers of the Parole Board). Furthermore, a trial court’s
statements respecting its position relative to any prerequisites to granting of
parole, where the Parole Board is the paroling authority, shall be considered
recommendations only. See 61 Pa.C.S.A. § 6134(b) (providing, in part,
“[n]o order in respect to the recommendation made or attempted to be
made as a part of a sentence shall be binding upon the board in performing
the duties and functions conferred on it by this chapter”).


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eligible and failing to include a RRRI minimum sentence.         Having also

determined that the trial court’s restitution award was illegal, we vacate the

July 9, 2015 sentence in its entirety and remand for resentencing in

accordance with this memorandum. See Gentry, supra.

      Judgment of sentence vacated.          Case remanded for resentencing.

Jurisdiction relinquished.

      Judge Platt joins the memorandum.

      Judge Bowes files a concurring and dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2016




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