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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KEITH CONRAD,

                            Appellant                No. 1659 WDA 2014


            Appeal from the Judgment of Sentence of May 20, 2014
              In the Court of Common Pleas of Clearfield County
             Criminal Division at No(s): CP-17-CR-0000853-2013


BEFORE: SHOGAN, OLSON AND MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                                 FILED JUNE 9, 2015

       Appellant, Keith Conrad, appeals from the judgment of sentence

entered on May 20, 2014, following his jury trial conviction for theft by

failure to make required disposition of funds received.1 We remand for the

trial court to file an opinion pursuant to Pa.R.A.P. 1925(a).

       We briefly summarize the facts and procedural history of this case as

follows. Appellant is a home improvement contractor.        Ronald Ferry hired

Appellant to install, inter alia, a geothermal heating system at Mr. Ferry’s

residence. The Commonwealth charged Appellant with the aforementioned

crime, as well as deceptive or fraudulent business practices2 when Appellant

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1
    18 Pa.C.S.A. § 3927.
2
    18 Pa.C.S.A. § 4107.
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purportedly accepted payment and did not complete services.        On April 9,

2014, a jury convicted Appellant of theft by failure to make required

disposition of funds and acquitted him of deceptive or fraudulent business

practices.    On May 20, 2014, the trial court sentenced Appellant to six

months to one year of incarceration, followed by two years of probation.

The trial court also ordered Appellant to pay $22,686.84 to Boyer

Refrigeration and $4,806.20 to Mr. Ferry as restitution. This timely appeal

resulted.3

       Appellant presents the following issues for our consideration:

         I & II.     Whether the trial court erred by misapplying the
                     sentencing guidelines when it assigned an offense
                     gravity score of (6) and used the same in
                     calculating the guideline sentence, where the
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3
    Appellant filed post-sentence motions on May 29, 2014. The trial court
held a hearing on Appellant’s post-sentence motions on June 5, 2014. The
trial court issued an order and opinion on August 26, 2014, denying counts V
and VII of Appellant’s post-sentence motion. As discussed infra, counts V
and VII of Appellant’s post-sentence motion dealt with issues pertaining to
alleged recusal. On September 25, 2014, Appellant filed a notice of appeal.
On September 26, 2014, Appellant’s post-sentence motions were denied by
operation of law. Although the notice of appeal was premature, because the
trial court had not ruled on the post-sentence motions in their entirety, the
appeal was perfected once the remaining counts were denied by operation of
law.     See Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the
announcement of a determination but before the entry of an appealable
order shall be treated as filed after such entry and on the day thereof.”). On
September 26, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925.
Appellant timely complied. On November 17, 2014, the trial court advised
this Court that it would rely on its August 26, 2014 opinion regarding the
issues presented on appeal.




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                  offense involved a monetary value of less than
                  $25,000[.00].

        III.      Whether the lower court erred by issuing an order
                  of restitution in the amount of $4,806.20 to
                  Ronald Ferry, where the restitution related to the
                  charge of deceptive business practices for which
                  [Appellant] was acquitted by a jury.

        IV.       Whether the lower court erred in sustaining the
                  verdict of guilty where the Commonwealth failed
                  to present sufficient evidence at trial to support a
                  jury finding that [Appellant] obtained the relevant
                  property “upon agreement, or subject to a known
                  legal obligation, to make specified payments or
                  other disposition.”

Appellant’s Brief at 5 (complete capitalization and suggested answers

omitted).

      In Appellant’s first three issues, he claims that the trial court

misapplied the sentencing guidelines when it assigned an inappropriate,

higher offense gravity score in fashioning Appellant’s sentence on his

conviction for theft by failure to make required disposition. Id. at 8. More

specifically, Appellant argues that since he was acquitted of deceptive

business practices, the trial court erred in ordering restitution in the amount

of $4,806.20 to Mr. Ferry. Id. at 9.    Appellant argues that his conviction for

theft by failure to make the required disposition of funds supported only the

$22,686.84 restitution award to Boyer Refrigeration. Thus, he contends:

        Theft by failure to make required disposition of funds is
        subcategorized within the sentencing guidelines according
        to the monetary value involved in the offense. Where the
        offense involved a monetary value amount between
        $2,000[.00] and $25,000[.00], the appropriate offense
        gravity score is five (5). Where the offense involved a

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        monetary      amount      between       $25,000[.00]   and
        $100,000[.00], the appropriate offense gravity score is six
        (6). Here, the offense for which [Appellant] was convicted
        involved a monetary amount of $22,686.84, making the
        appropriate offense gravity score five (5).

        Furthermore, due to the miscalculation of the offense
        gravity score, [Appellant] was sentenced according to an
        inaccurate standard range. The standard range for an
        offense gravity score of five (5) and a prior record score of
        zero (0) is RS (restorative sanctions) to nine (9) months of
        incarceration. However, the standard range for an offense
        gravity score of six (6) and a prior record score of zero (0)
        increases to three (3) to twelve (12) months of
        incarceration.   Although [Appellant’s] minimum term of
        incarceration of six (6) months could have been imposed
        under either standard range, that does not prevent
        [Appellant] from raising the present challenge to the
        misapplication of the sentencing guidelines.

Id. at 15 (some capitalization omitted).

     In sum, in his first three issues on appeal, Appellant avers that the

trial court erred by ordering restitution on the acquitted charge of deceptive

business practices.   Appellant argues that this error, in turn, improperly

inflated the monetary value of Appellant’s conviction under the sentencing

guidelines and affected the offense gravity score used by the trial court to

determine the applicable guideline range for theft by failure to make

required disposition of funds received.        In his fourth issue presented,

Appellant contends that the Commonwealth did not present sufficient

evidence to support his conviction for theft by failure to make required

disposition of funds received. Id. at 26-31.

      Here, the trial court did not address any of these issues despite the

fact that Appellant raised all of them in both his post-sentence motions and

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his concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). We have previously determined:

        In order to conduct a thorough and proper review on
        appeal, an opinion explaining the reasoning behind the trial
        court's decisions is advantageous. The absence of a trial
        court opinion poses a substantial impediment to meaningful
        and effective appellate review. Rule 1925 is intended to aid
        trial judges in identifying and focusing upon those issues
        that the parties plan to raise on appeal. Rule 1925 is thus a
        crucial component of appellate process. Rule 1925 directs
        the trial courts to provide an opinion as to the issues the
        appellant will raise[].

Commonwealth v. McBride, 957 A.2d 752, 758 (Pa. Super. 2008)

(citations and quotations omitted).

      In this case, the trial court filed an opinion on August 26, 2014. Upon

review of that decision, the trial court only addressed claims pertaining to

alleged impartial comments made by a different judge during a civil hearing

regarding potential criminal liability in this matter.     Trial Court Opinion,

8/26/2014, at 2-3.    The trial court determined that the alleged failure to

recuse was cured by the subsequent jury trial. Id. at 3-4. Unfortunately,

the trial court did not address the issues Appellant currently raises on

appeal. Instead, on November 17, 2014, this Court received a letter from

the trial court indicating that it was relying on its August 26, 2014 opinion in

response to Appellant’s Rule 1925(b) statement.          However, because the

August 26, 2014 opinion did not examine the issues we are presently

reviewing, we are constrained to remand this matter for the preparation of a




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Rule 1925(a) opinion that addresses all of the issues raised in Appellant’s

Rule 1925(b) concise statement.

     Case remanded for the preparation of an opinion pursuant to Pa.R.A.P.

1925(a).   Jurisdiction retained.




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