J-S75011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 ANN MARIE BALLENTINE                     :
                                          :
                     Appellant            :   No. 1150 EDA 2018

           Appeal from the Judgment of Sentence March 27, 2018
           In the Court of Common Pleas of Northampton County
            Criminal Division at No(s): CP-48-CR-0000388-2014


BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.:                             Filed June 10, 2019

      Appellant, Ann Marie Ballentine, appeals from the orders entered in the

Northampton County Court of Common Pleas denying her petition to vacate

restitution and her petition to terminate parole. Ballentine contends the trial

court erred in denying her petition to vacate restitution since the First

Presbyterian Church of Easton (“the Church”), to whom restitution is to be

paid, is a corporation and not an individual under 18 Pa.C.S.A § 1106. She

further contends the trial court erred in denying her request to terminate

parole, claiming she did not willfully violate her parole, and made every effort

to pay. We affirm.

      From approximately October of 2006 until October of 2013, Ballentine

stole $317,937.35 from the Church while acting in her capacity as treasurer.

Ballentine subsequently pled guilty to one count of theft by failure to make

required disposition of funds, agreeing that she utilized Church funds for her
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own use. Sentencing was deferred for preparation of a presentence

investigation report.

      On December 23, 2014, Ballentine was sentenced to nine to twenty-

three months’ imprisonment and was further ordered to pay restitution in the

amount of $352,104.27 to the Church and $10,000.00 to Guide One

Insurance, which insured the Church.

      In September of 2015, Ballentine was paroled and agreed to pay

$500.00 per month towards restitution. The court subsequently granted her

request to reduce her monthly payments to $300.00 per month. In December

2016, the trial court revoked her parole, based upon a finding she had

committed a technical violation by not fully paying off the entire amount of

restitution. The court denied her credit for her time on parole, immediately re-

paroled her, and increased her monthly restitution payment to $356.00.

      On November 15, 2017, the Commonwealth filed a petition to review

Ballentine’s parole alleging she had failed to pay restitution in full. The

Commonwealth asserted that the court should find Ballentine in technical

violation of her parole, as she had not fully paid restitution.

      In response, Ballentine filed a petition requesting vacation of her

restitution and termination of her parole. She argued that the Church was not

entitled to restitution pursuant to Commonwealth v. Veon, 150 A.3d 435,

456 (Pa. 2016). Further, she contended her continuing parole status impeded

her earning capacity.




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       The court subsequently denied the petition on both issues.1 The court

further ordered that Ballentine was to remain under supervision of the

Northampton County Probation Office for a twenty-four month period, or until

restitution was paid in full.

       Ballentine filed this timely appeal on April 11, 2018. The very next day,

the trial court issued an order accomplishing three objectives.2 First, the order

found that Ballentine was in technical violation of her parole. Second, the order

denied her credit for her time spent on parole and immediately re-paroled her.

Finally, the order amended the March 27, 2018, order imposing twenty-four

months of supervision to impose a fourteen month sentence.3

       In her first issue on appeal, Ballentine contends the trial court erred in

denying her petition to vacate restitution. Specifically, Ballentine argues the

Church is a corporation and not an individual under 18 Pa.C.S.A. § 1106.




____________________________________________


1The trial court denied the petition to vacate restitution on March 23, 2018.
The court deferred a decision on the petition to terminate parole. On March
27, 2018, the trial court denied the petition to terminate parole.

2  Ballentine has not challenged the court’s amendment of the order after she
filed her appeal.

3 The trial court erred in its order denying Ballentine’s petition to terminate
parole when it ordered that she remain under supervision for a period of
twenty-four months. See Commonwealth v. Fair, 497 A.2d 643, 645 (Pa.
Super. 1985). However, the trial court corrected this error by issuing a new
order on April 12, 2018, striking the twenty-four month probation period from
the previous order, and imposing a new fourteen month sentence without
credit for previous time on parole.

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Ballentine asserts that pursuant to Veon, 150 A.3d at 456, restitution may

not be awarded to a non-human being under section 1106.

       Ballentine’s claim presents a pure question of law, which warrants a de

novo review. “It is well settled that a challenge to a court’s authority to impose

restitution is generally considered to be a challenge to the legality of the

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

(citation omitted). In a challenge to the legality of sentence, our standard of

review is whether the sentencing court committed an error of law.

Commonwealth v. Dietrich, 970 A.2d 1131, 1133 (Pa. 2009) (citation

omitted).

       “The imposition of restitution is within the sound discretion of the

sentencing court and must be supported by the record.” Commonwealth v.

Solomon, 25 A.3d 380, 389 (Pa. Super. 2011) (citation omitted). “[T]he

primary purpose of restitution is rehabilitation of the offender by impressing

upon him that his criminal conduct caused the victim’s loss or personal injury

and that it is [the offender’s] responsibility to repair the loss or injury as far

as possible.” Commonwealth v. Biauce, __ A.3d __, __ (Pa. Super., filed

May 15, 2017) (brackets in original) (citation omitted).

       We conclude Pennsylvania law4 includes private non-natural persons

within its definition of victims.

____________________________________________


4We note this issue is currently before the Pennsylvania Supreme Court in a
case with a similar factual background. The Pennsylvania Supreme Court



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       We find the holding in Veon is distinguishable and inapplicable to this

case. Generally, the word “person” when used in a statute is held to include

corporations. See Casco Products Corp. v. Hess Bros., Inc., 132 A.2d 922,

925 (Pa. Super. 1957). In contrast, in Veon, the Pennsylvania Supreme Court

relied on long-standing precedent interpreting the Statutory Construction Act

holding that Commonwealth agencies were clearly excluded from the

definition of “person.” 150 A.3d at 450 (quoting Commonwealth v. Runion,

662 A.2d 617, 619 (Pa. 1995)).

       The narrowness of the Veon holding is buttressed by the fact that the

Statutory Construction Act explicitly includes corporations and other limited

liability organizations in the definition of “person,” while explicitly excluding

Commonwealth governmental entities:

       “Person.” Includes a corporation, partnership, limited liability
       company, business trust, other association, government entity
       (other than the Commonwealth), estate, trust, foundation or
       natural person.

1 Pa.C.S.A. § 1991. Thus, the statutory scheme clearly encompasses certain

nonhuman entities, such as the nonprofit victimized by Ballentine, within the

class of victims entitled to restitution.

       Therefore, we find the trial court did not err in denying the petition to

vacate restitution. Ballentine’s first issue merits no relief.


____________________________________________


granted allocator on February 21, 2019 in Commonwealth v. Steffey, 203
A.3d 202, to determine whether this Court erred in upholding a sentence to
pay restitution to a nonprofit corporation, in light of Veon.

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      In her second issue on appeal, Ballentine contends the trial court erred

in denying her request to terminate parole. She further argues that the trial

court erred by revoking her parole and not giving her credit for time on parole.

She claims that since she did not willfully violate the parole and made every

effort to pay as much as she could afford each month toward the restitution,

the court erred in revoking parole.

      Under Pennsylvania Law, when an offender is found to be in

noncompliance with a restitution order, “the court shall order a hearing to

determine if the offender is in contempt of court or has violated his probation

or parole.” 18 Pa.C.S.A. § 1106(f).

      Prior to revoking probation on the basis of failure to pay fines,
      costs or restitution, the court must inquire into the reasons for a
      defendant's failure to pay and make findings pertaining to the
      willfulness of the party's omission.

                                   ***

      After making those determinations, if the court finds the
      probationer could not pay despite sufficient bona fide efforts to
      acquire the resources to do so, the court should then consider
      alternatives to incarceration.

Commonwealth v. Ballard, 814 A.2d 1242, 1247 (Pa. Super. 2003)

(citations and internal quotation marks omitted) (emphasis added).

      In the instant case, the trial court held a hearing on March 23, 2018, to

address the issue of Ballentine’s failure to immediately pay restitution in full.

In revoking parole, but not incarcerating Ballentine, the court took into

consideration Ballentine’s failure to pay, as well as the reasons for her failure.


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It concluded her failure was not willful. The court also noted that it was not

anyone’s intention to incarcerate Ballentine. Rather, the court concluded that

continued parole was an appropriate alternative remedy for Ballentine’s failure

to pay full restitution. The court further made the supervision nominal, so as

not to be punitive but rather to keep her on track for complying with the

restitution order.

      Therefore, the trial court considered all the appropriate circumstances.

Further, it considered, and ultimately imposed, an alternative to incarceration

as a result. It therefore did not err in revoking Ballentine’s parole and denying

her credit for her time on parole. The court’s alternative to incarceration

accomplished the twin goals of minimizing the financial impact on Ballentine

while maintaining an incentive to continue paying restitution to the Church.

      We find Ballentine is not entitled to relief on either of her claims. As a

result, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/10/2019




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