J-S31007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 RONEESE DAVIS                          :
                                        :
                   Appellant            :   No. 1048 WDA 2018

        Appeal from the Judgment of Sentence Entered June 21, 2018
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0011185-2017

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 BREONNA LASHAE SWEENEY                 :
                                        :
                   Appellant            :   No. 1115 WDA 2018

       Appeal from the Judgment of Sentence Entered March 12, 2018
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0011186-2017


BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY OLSON, J.:                         FILED AUGUST 29, 2019

     Appellants, Roneese Davis (Davis) and Breonna Lashae Sweeney

(Sweeney) (collectively, Appellants), appeal from the judgments of sentence

entered on March 12, 2018, as made final by the entry of restitution orders

on June 21, 2018, following their guilty pleas to simple assault, disorderly
J-S31007-19



conduct, criminal mischief, and harassment.1 For the reasons that follow, we

are constrained to vacate and remand for resentencing.

       The trial court summarized the facts and procedural history of this case

as follows:

       On March 12, 2018, Appellants plead [sic] guilty to the above
       referenced charges and were sentenced in accordance with a plea
       agreement to two (2) years of probation [for] [s]imple [a]ssault,
       followed by a consecutive one (1) year period of probation for
       [d]isorderly [c]onduct. The facts, which were stipulated to at the
       guilty plea[,] are as follows:

          On May 20, 2017, police responded to an assault in-progress
          on a Port Authority bus [in Pittsburgh, Pennsylvania]. The
          officer observed the victim in the rear of the bus with visible
          facial injuries, including blood inside and around her mouth
          and nose. The victim complained of head and facial pain,
          vision problems, and reported that her eyeglasses were
          broken during the assault.         Video surveillance footage
          captured the assault and corroborated the victim and
          witness accounts that Appellants physically attacked the
          victim by repeatedly punching her about the face. At
          sentencing, the Commonwealth submitted a restitution
          order for $5,383.88 representing the costs associated with
          some of the victim’s medical treatment.            Appellant[s]
          requested a restitution hearing. The hearing took place on
          April 13, 2018, wherein [Appellants] argued that the
          medical records were incomplete               and that       the
          Commonwealth failed to establish direct causation between
          the assault and the [victim’s] detached retina diagnosis.
          The [trial c]ourt became aware during the hearing that the
          Commonwealth had received additional medical records,
          prompting a continuation of the hearing. When the parties
          reconvened before [the trial c]ourt on May 8, 2018,
          Appellants reiterated their argument regarding lack of direct
          causation and also challenged the authority of the [trial
          c]ourt to order restitution to Equian[, a third-party collection
____________________________________________


1 18 Pa.C.S.A. §§ 2701(a)(1), 5503(a)(4), 3304(a)(4), and 2709(a)(1),
respectively.

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         agency]. Citing 18 P.S. § 11.10[3 and 18 Pa.C.S.A. § 1106],
         Appellants argued that Equian, a third[-]party collection
         agency seeking restitution on behalf of the [victim’s]
         medical provider, UPMC, is not statutorily authorized to
         receive payment. Briefs were ordered [and received] on the
         issue of Equian’s eligibility and argument took place on June
         21, 2018. After argument, [the trial c]ourt entered a
         restitution order[, docketed in both cases,] in the amount of
         $5,383.88 payable [in equal parts by Davis and Sweeney]
         to Equian, finding that payment to a collection agency
         designated by an entity entitled to receive restitution,
         achieves the legislative purpose of the statute:
         rehabilitation and punishment. Post-sentence motions
         challenging the legality of the restitution order were denied
         and timely [n]otices of [a]ppeal [and court-ordered concise
         statements of errors complained of on appeal pursuant to
         Pa.R.A.P. 1925(b)] were filed by both Appellants raising
         identical issues. [The trial court issued an opinion pursuant
         to Pa.R.A.P. 1925(a) on August 31, 2018.]

Trial Court Opinion, 8/31/2018, at 2-4 (footnotes omitted).

      On appeal, Davis raises the following issues for our review:

      1. Was the trial court’s sentence illegal in ordering $5,383.88 in
         restitution to Equian, a debt collector, under the restitution
         statute, 18 Pa.C.S.[A.] § 1106, when Equian was not an entity
         listed under the aforementioned restitution statute?

      2. Was the trial court’s sentence illegal because the record
         supports no causal connection between the ordered restitution
         for the injury complained of, a detached retina, and the simple
         assault to which [] Davis pleaded guilty?

Davis’ Brief, at 3 (numbers supplied).

      On appeal, Sweeney raises the following issues for our review:

       I.   Did the trial court impose an illegal sentence in ordering
            restitution to Equian, a debt collector, in the amount of
            $5,383.88 where (1) Equian is not an entity that is
            statutorily entitled to receive restitution under 18
            Pa.C.S.[A.] § 1106 (relating to restitution for injuries to
            person or property), and (2) the record does not support a
            causal connection between the amount of restitution

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            ordered for personal injury to the complaining witness –
            namely a detached retina – and the simple assault to which
            [] Sweeney pled guilty?

Sweeney’s Brief at 7 (complete capitalization omitted).

      First, Appellants contend that the trial court erred by ordering Equian, a

third-party debt-collector, to receive restitution under 18 Pa.C.S.A. § 1106,

because a debt-collector is not a “victim” as statutorily defined and “the

General Assembly had not otherwise manifested an intent to include debt

collectors as victims entitled to restitution.” Sweeney’s Brief at 31; see also

Davis’ Brief at 15 (“Equian is neither a victim nor is it an entity that reimbursed

[the victim] directly or indirectly.”) Next, Appellants argue that restitution is

only proper when there is a direct causal connection between the victim and

the criminal conduct of a defendant and that the medical records as submitted

by the Commonwealth failed to connect Appellants’ assaultive conduct directly

with the victim’s detached retina. Sweeney’s Brief at 39-41; Davis’ Brief at

16-17.    As explained below, however, because the trial court erred as a

matter of law by failing to determine the amount of restitution at the original

time of sentencing, we are constrained to vacate the restitution orders and

underlying judgments of sentence and remand the case for resentencing.

      This Court recently reiterated:

      [This Court may sua sponte review an order imposing restitution,
      entered after the separate entry of judgment of sentence, as it
      implicates the legality of sentence]. See Commonwealth v.
      Mariani, 869 A.2d 484 (Pa. Super. 2005) (explaining judgment
      of sentence including open restitution “to be determined at later
      date” is ipso facto illegal); Commonwealth v. Deshong, 850

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     A.2d 712, 713 (Pa. Super. 2004) (stating timeliness of court's
     imposition of restitution concerns legality of sentence). See
     also Commonwealth v. Oree, 911 A.2d 169, 172 (Pa. Super.
     2006), appeal denied, 918 A.2d 744 (Pa. 2007) (maintaining
     legality of sentence claims cannot be waived, given proper
     jurisdiction, and Superior Court can review illegal sentences sua
     sponte).

     Issues concerning a court's statutory authority to impose
     restitution       implicate        the       legality     of      the
     sentence. Commonwealth v. Smith, 956 A.2d 1029 (Pa. Super.
     2008) (en banc), appeal denied, 989 A.2d 917 (Pa. 2010). “Issues
     relating to the legality of a sentence are questions of
     law....” Commonwealth v. Diamond, 945 A.2d 252, 256 (Pa.
     Super. 2008), appeal denied, 955 A.2d 356 (Pa. 2008). When the
     legality of a sentence is at issue, our “standard of review over such
     questions is de novo and our scope of review is plenary.” Id. “If
     no statutory authorization exists for a particular sentence, that
     sentence is illegal and subject to correction. An illegal sentence
     must be vacated....” Commonwealth v. Pombo, 26 A.3d 1155,
     1157 (Pa. Super. 2011) (quoting Commonwealth v. Bowers, 25
     A.3d 349, 352 (Pa. Super. 2011), appeal denied, 51 A.3d 837 (Pa.
     2012)).

     In criminal proceedings, an order of restitution is a sentence (even
     when imposed as a condition of probation); it is not an award of
     damages; “recompense to the victim is secondary.” Mariani,
     supra at 486 (quoting Commonwealth v. Wright, 722 A.2d
     157, 160 (Pa. Super. 1998)). The objectives of restitution differ
     from the objectives of awarding damages; although the amounts
     are related, they “need not be coterminous.” Id. “[T]he 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.” Commonwealth v.
     Solomon, 25 A.3d 380, 389 (Pa. Super. 2011), appeal denied, 40
     A.3d 1236 (Pa. 2012) (quoting Mariani, supra at 486).

Commonwealth v. Ramos, 197 A.3d 766, 768–769 (Pa. Super. 2018).

     The imposition of restitution is statutorily set forth at 18 Pa.C.S.A.

§ 1106, which provides in pertinent part:




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     § 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.

                                     ***

     (c) Mandatory restitution.—

        (1) The court shall order full restitution:

                                     ***

        (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.

                                     ***

        (3) The court may, at any time or upon the
        recommendation of the district attorney that is based on
        information received from the victim and the probation
        section of the county or other agent designated by the
        county commissioners of the county with the approval of the
        president judge to collect restitution, alter or amend any
        order of restitution made pursuant to paragraph (2),
        provided, however, that the court states its reasons and
        conclusions as a matter of record for any change or
        amendment to any previous order.

        (4)(i) It shall be the responsibility of the district attorneys
        of the respective counties to make a recommendation to the
        court at or prior to the time of sentencing as to the amount
        of restitution to be ordered. This recommendation shall be


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         based upon information solicited by the district attorney and
         received from the victim.

18   Pa.C.S.A.   §   1106(a),   (c)(1)-(4)(i)   (emphasis   added);    see     also

Commonwealth v. Dinoia, 801 A.2d 1254, 1257 (Pa. Super. 2002) (Section

1106(c)(2) includes “the requirement that if restitution is ordered, the amount

must be determined at the time of sentencing....”) (emphasis in original).

      We have stated:

      [Section 1106] place[s] upon the Commonwealth the requirement
      that it provide the court with its recommendation of the restitution
      amount at or prior to the time of sentencing. Although the statute
      provides for amendment or modification of restitution “at any
      time,” 18 Pa.C.S.A. § 1106(c)(3), the modification refers to an
      order “made pursuant to paragraph (2)....” Thus, the statute
      mandates an initial determination of the amount of restitution at
      sentencing. This provides the defendant with certainty as to his
      sentence, and at the same time allows for subsequent
      modification, if necessary.

      [Dinoia, 801 A.2d at 1257] (internal citations and footnote
      omitted). See also Smith, supra (holding court cannot impose
      generalized, open-ended restitution order at sentencing
      and then “work out the details” and amounts at later date;
      order of restitution “to be determined later” is ipso facto illegal);
      Mariani, supra (explaining Section 1106(c) has two, inextricable
      components: (1) time at which restitution sentence must be
      imposed, i.e., at sentencing hearing, and (2) specific nature of
      such sentence, i.e., definite as to amount and method of
      payment). Thus, an order entered after the delayed restitution
      proceeding is not what renders the sentence illegal; it is the
      court's order at the initial sentencing, postponing the imposition
      of restitution until a later date, that fails in both respects to meet
      the criteria of the restitution statute and taints the entire
      sentence. Id. at 486; 18 Pa.C.S.A. § 1106.

      As long as the sentencing court sets some amount and method
      of restitution at the initial sentencing, the court can later modify
      that order, but only if the requirements of Section 1106(c)(3) are
      met. Commonwealth v. Dietrich, 970 A.2d 1131 (Pa. 2009).
      This authority to modify restitution takes into account that the full

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      amount of restitution might be indeterminable before sentencing
      under Pa.R.Crim.P. 704. Id.

Ramos, 197 A.3d at 770 (footnote omitted; emphasis added).

      Before Appellants entered their guilty pleas at the March 12, 2012

hearing, the Commonwealth averred that the victim was entitled to restitution

for a damaged pair of eyeglasses totaling $149.00, an ambulance ride and the

first visit to the hospital that were paid for by the Victim’s Compensation

Assistance Program, and the victim’s subsequent surgeries and medical bills

totaling $5,383.88. See N.T., 3/12/2018, at 15-16. Counsel for Appellants

requested a “restitution hearing” regarding the medical bills.        Id. at 15.

Appellants then pled guilty and proceeded directly to sentencing. Id. at 16-

19. The victim gave an impact statement to the trial court. Id. at 20-21.

The trial court then asked the Commonwealth “how long [it] would take to get

the restitution information together[.]”     Id. at 21.     The Commonwealth

responded that it had “all of the restitution information present” and was ready

to proceed on restitution. Id. However, counsel for Davis stated that she

wanted to “go through the itemized bill for the hospital … to make sure [it

reflected] the correct amount.” Id. at 22. The trial court sentenced both

Appellants to probation, but “[left] the question of restitution open for a period

of 30 days for a subsequent proceeding[.]” Id. at 24.         When solicited for

questions, Sweeney asked the trial court when the restitution would go into

effect. Id. at 26. The trial court stated:




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      We haven’t decided that yet. We have to have another hearing
      about that. […W]e will bring you back within 30 days on some
      Friday that I’m available. And I will listen to restitution testimony
      and I will make whatever findings that I find are merited.

Id. at 26.     At the end of the sentencing proceeding, the Commonwealth

asked counsel for Appellants whether it was necessary to bring the victim back

for the additional proceeding to testify about her broken glasses. Id. at 29.

Counsel for Appellants claimed it was not necessary, implicitly conceding

restitution was warranted for the victim’s property loss. Id.

      Thereafter, on March 12, 2018, the trial court entered sentencing orders

for both Appellants. The original sentencing orders neither directed payment

of restitution nor specified any amount for repayment.      While the trial court

included a “taxing bill” that included an “itemized account of fines, costs, fees,

and restitution,” no restitution was listed.

      The trial court then held restitution hearings on April 13, 2018, May 8,

2018, and June 21, 2018. On June 21, 2018, the trial court entered the orders

complained of on appeal, captioned “RESTITUION ORDERED – ORDER OF

SENTENCE.” In those orders, the trial court ordered restitution in a lump sum

amount of $6,829.59 to be paid jointly and severally by Appellants.           This

restitution was imposed on Appellants’ convictions for simple assault.

Attached to each of the June 21, 2018 orders is a document entitled




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“RESTITUTION COURT ORDER,” which was dated April 13, 2018.2 In the April

13, 2018 orders, the restitution owed by each Appellant is separated into three

categories: $149.00 to the victim for her broken eyeglasses,3 $1,296.71 to

the Victims Compensation Assistance Program for the victim’s initial medical

treatment, and $5,383.88 to Equian, a third-party debt collector, for the

victim’s subsequent surgeries and hospitalization.         Pursuant to Section

1106(c)(2), however, the trial court did not have the authority to leave the

amount and method of payment for restitution open for a decision at a later

date. As the record makes clear, the trial court intended restitution as an

integral part of the sentencing scheme on March 12, 2018, but waited until

later to impose it. As we concluded in Ramos:

       Notwithstanding the statutory language [of Section 1106] and
       case law requiring imposition of some amount of restitution and a
       method of payment at the time of sentencing, we continue to see
       courts make a general order of restitution as part of the sentence
       but postpone the actual specifics to a later date. This practice is
       contrary to law. In other words, a sentence intended to include
       restitution, which is initially entered without a definite amount and
       a method of payment is illegal and must be vacated in its entirety.
____________________________________________


2    The “restitution orders” are dated and docketed April 13, 2018, which
coincides with the first hearing on restitution. However, the trial court then
held two additional hearings before entering the June 21, 2018 orders that
relied upon the attached April 13, 2018 orders.

3 In addition, we note that the trial court erred by attributing the $149.00 for
the victim’s eyeglasses to Appellants’ simple assault convictions. As the
Commonwealth noted, it sought $149.00 for damage to the victim’s personal
property as a result of criminal mischief. See N.T., 3/12/2018, at 16. As
such, we conclude that the trial court erred by lumping the $149.00 into the
total restitution amount ordered and linking it to Appellant’s simple assault
convictions.

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Ramos, 197 A.3d at 770–771. Accordingly, we vacate the orders pertaining

to restitution entered on April 13, 2018 and June 21, 2018, as well as the

earlier March 12, 2018 sentencing orders for both Appellants and remand for

resentencing. Due to our disposition, we decline to address Appellants’ issues

regarding causation and whether restitution is payable to a debt-collector.

These issues are subject to change at resentencing.

      Judgment of sentence vacated.          Case remanded for resentencing.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/29/2019




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