J-S38011-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

RUSSELL ALLAN GENTRY

                         Appellant                   No. 1920 MDA 2014


        Appeal from the Judgment of Sentence of November 12, 2014
                In the Court of Common Pleas of York County
             Criminal Division at No: CP-67-CR-0002747-2009


BEFORE: WECHT, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY WECHT, J.:                            FILED AUGUST 25, 2015

      In an earlier appeal, a panel of this Court concluded that the trial court

illegally imposed $42,000 in restitution upon Russell Gentry by delegating

the authority to set the amount of restitution to the probation department.

See Commonwealth v. Gentry, 101 A.3d 813, 818-19 (Pa. Super. 2014).

We remanded the case for a new sentencing hearing, which we limited to

the issue of restitution. Id. On remand, the trial court held a hearing and

imposed a new judgment of sentence, which included $45,000 in restitution.

For the reasons that follow, we again vacate the judgement of sentence, and

we remand for another resentencing hearing limited to the consideration of

restitution.

      In our prior decision, we set forth the initial procedural history of this

case as follows:
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     On June 2, 2009, the Commonwealth filed an information
     charging [Gentry] with three counts of possession with intent to
     deliver (PWID), three counts of intentional possession of a
     controlled substance, and one count each of possession of drug
     paraphernalia and receiving stolen property.1 On August 6,
     2009, [Gentry] pled guilty to two counts of PWID and one count
     of receiving stolen property. Pursuant to a plea agreement with
     the Commonwealth, the trial court imposed an aggregate
     sentence of ten to 23 months’ imprisonment to be followed by
     two years’ probation.       [A]t sentencing, the Commonwealth
     requested that the trial court “set [restitution] at [$1.00] to be
     refined by probation.” The trial court ordered that “[r]estitution
     is in favor of [the victim] at one dollar subject to review and
     adjustment.” At some point, the York County Adult Probation
     Office (Probation) arrived at the amount of $49,000.00.
     [Gentry] did not file a direct appeal with this Court.3
        1
          35 P.S. §§ 780-113(a)(30), 780-113(a)(16),            780-
        113(a)(32), and 18 Pa.C.S. § 3925(a), respectively.

                               *     *     *

        3
          The certified record contains a document filed January
        22, 2010 from Probation entitled “Restitution.”         See
        Appellant’s Motion for Restitution to be Discharged,
        6/11/13, at Exhibit C. The form has handwritten notations
        for the trial court docket number, the restitution amount of
        $49,000.00, and the victim’s name and address. Id. The
        record does not reveal how Probation arrived at
        $49,000.000 as the appropriate restitution amount.

     On February 20, 2013, Probation filed a violation report based on
     [Gentry’s] failure to pay his court fees, costs, and restitution.4
     The trial court held a hearing on April 15, 2013 at which
     [Gentry] admitted the violation and agreed with Probation’s
     recommended sentence. As a result, the trial court revoked
     [Gentry’s] probation and imposed a new sentence of four years’
     probation. [Gentry] did not file a motion for reconsideration of
     sentence or notice of appeal.
        4
           The basis for the violation was that [Gentry] would not
        be able to pay the restitution amount in full by the time his
        probation expired. Petition for Violation, 2/20/13, at 2.
        Probation noted that [Gentry] had made all of his


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         payments on time to date, and that he was in compliance
         with all other conditions of his probation. Id.

      On June 11, 2013, [Gentry] filed a “Motion for Restitution to be
      Discharged.” The trial court conducted a hearing on December
      17, 2013, at the conclusion of which it entered an order
      dismissing the motion as untimely. However, the trial court
      reduced the amount of restitution to $42,000 based on a
      concession from the Commonwealth. On January 16, 2014,
      [Gentry] filed a notice of appeal.

Gentry, 101 A.3d at 815 (some footnotes omitted; references to the notes

of testimony omitted). As noted earlier, a panel of this Court held that the

trial court’s delegation of the authority to set the amount of restitution to the

probation office resulted in an illegal sentence. Id. at 818-19. Hence, we

remanded for a new sentencing hearing limited to the consideration of

restitution. Id.

      At the remand hearing, the Commonwealth presented the testimony of

Joseph Alley, Sr. Mr. Alley testified that, during or around March of 2009, a

safe, and all of the contents contained therein, was stolen from his parents’

house. Notes of Testimony (“N.T.”), 11/12/2014, at 5-6. Mr. Alley stated

that the safe housed approximately $42,000 in cash, and all of his deceased

wife’s jewelry. Id. at 7-8. Mr. Alley noted that approximately sixty percent

of his wife’s jewelry had been returned since the theft. Id. at 8. The safe

also contained various coins, badges, and packs of two-dollar bills. Id. at 9.

Mr. Alley valued the non-cash items that were stolen at approximately six to

eight thousand dollars. Id. At the conclusion of the hearing, the trial court

set restitution at $45,000, which represented the cash that was taken from



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the safe as well as the value of the jewelry that had not yet been returned to

Mr. Alley. Id. at 33.

        On November 14, 2014, Gentry filed a notice of appeal. On November

19, 2014, the trial court directed Gentry to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b) within twenty-one

days.        Gentry did not file a concise statement within twenty-one days.

Instead, he filed a concise statement on December 26, 2014. On February

11, 2015, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).

        Gentry raises two questions for our review:

        I.      Did the trial court commit reversible legal error when it
                awarded restitution in the amount of $45,000?

        II.     Was the evidence at the restitution hearing sufficient to
                support the trial court’s award of restitution in the amount
                of $45,000?

Brief for Gentry at 4.

        In his first argument, Gentry argues that the restitution award was

illegal. Specifically, Gentry notes that he was charged with receiving stolen

property, and pleaded guilty to that crime as charged, not with burglary,

theft, or any other action related to the actual removal of the safe from Mr.

Alley’s parents’ home. The receiving stolen property charge was limited to

the items that were found to be in his possession, which were valued in the

criminal information as approximately $2,000.              Consequently, Gentry

argues, the trial court imposed restitution on him for conduct for which he

was not charged, and where no causal connection existed between his


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actions and the total amount of money and jewelry that was taken from Mr.

Alley. In other words, Gentry maintains that the trial court did not have the

authority to impose restitution beyond the value that resulted from the

crime for which he was charged and convicted.

       We first must address the Commonwealth’s contentions that this claim

is waived. The Commonwealth contends that Gentry has waived this claim:

(1) Gentry did not file a Rule 1925(b) statement within the time frame set

forth by the trial court; (2) Gentry’s tardy Rule 1925(b) statement was

vague; and (3) Gentry did not raise this issue in the first instance before the

trial court. See Brief for the Commonwealth at 10-15. As a general matter,

the Commonwealth’s arguments reflect the requirements with which litigants

must comport in order to preserve and litigate a claim on appeal. However,

the Commonwealth’s arguments nonetheless are unavailing because, as the

Commonwealth implicitly admits,1 Gentry is challenging the trial court’s

authority to impose the restitution.

       Regarding challenges to the trial court’s imposition of restitution,
       the appellate courts have drawn a distinction between those
       cases where the challenge is directed to the trial court’s
       authority to impose restitution and those cases where the
       challenge is premised upon a claim that the restitution order is
       excessive. When the court’s authority to impose restitution is
       challenged, it concerns the legality of the sentence; however,

____________________________________________


1
      The Commonwealth repeatedly characterizes Gentry’s first claim as a
challenge to the sentencing court’s authority in its brief. See Brief for the
Commonwealth at 10-18.



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      when the challenge is based on excessiveness, it concerns the
      discretionary aspects of the sentence.

Commonwealth v. Oree, 911 A.2d 169, 173 (Pa. Super. 2006) (citations

omitted). Here, because Gentry clearly challenges the trial court’s authority

to impose restitution, his claim implicates the legality of his sentence.

Hence, despite Gentry’s failures to comply with our normal preservation

requirements in each of the ways asserted by the Commonwealth, he has

not waived his claims because challenges to the legality of a sentence are

non-waivable.    Commonwealth v. Langston, 904 A.2d 917, 921 (Pa.

Super. 2006). “Issue 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. Akbar, 91 A.3d 227,

238 (Pa. Super. 2014) (citations omitted).

      Restitution is governed by 18 Pa.C.S. § 1106, which provides, in

pertinent part, 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.

      (b) Condition of probation or parole.—Whenever restitution
      has been ordered pursuant to subsection (a) and the offender
      has been placed on probation or parole, his compliance with such
      order may be made a condition of such probation or parole.

      (c) Mandatory restitution.—


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                                       ...

        (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.

              (iii) Shall not order incarceration of a defendant
              for failure to pay restitution if the failure results
              from the offender’s inability to pay.

              (iv) Shall consider any other preexisting orders
              imposed on the defendant, including, but not
              limited to, orders imposed under this title or any
              other title.

        (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.

                                       ...

18 Pa.C.S. § 1106.

     As a general rule, there must be a specific nexus between the amount

of restitution ordered by a trial court and the crime committed.      We




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described this connection in Commonwealth v. Harriott, 919 A.2d 234

(Pa. Super. 2007), as follows:

     Case law speaks of restitution imposed under § 1106(a) as being
     a direct sentence, rather than just a condition of probation or
     intermediate punishment. Interest of M.W., 725 A.2d 729,
     731, 732 (Pa. 1999); Commonwealth v. Deshong, 850 A.2d
     712, 715, 716 (Pa. Super. 2004). Additionally, because of the
     statutory language “directly resulting from the crime,” restitution
     is proper only if there is a direct causal connection between the
     crime and the loss. In re M.W., 725 A.2d at 732 (holding that
     restitution imposed as a direct sentence under 18 Pa.C.S.A. §
     1106(a) must result directly from the crime); Commonwealth
     v. Popow, 844 A.2d 13, 19 (Pa. Super. 2004) (holding
     restitution for medical bills was improper under § 1106(a) due to
     lack of direct causation where appellant was acquitted of cutting
     victim and only convicted of threatening him); Commonwealth
     v. Walker, 666 A.2d 301, 310 (Pa. Super. 1995) (holding
     restitution for medical bills was proper under § 1106(a) because
     appellant’s drunk driving caused a two-car accident which
     directly injured the occupants of the other vehicle);
     Commonwealth v. Fuqua, 407 A.2d 24, 25, 28 (Pa. Super.
     1979) (holding restitution for injury to property was proper
     under § 1106(a) because appellant’s drunk driving caused him to
     collide with victim’s house, thereby damaging it).

Harriet,    919   A.2d   at   237-38    (citations    modified).    Similarly,   in

Commonwealth v. Barger, 956 A.2d 458 (Pa. Super. 2008), we noted the

Pennsylvania Supreme Court’s prescription that Section 1106 “applies only

for those crimes to property or person where there has been a loss that

flows from the conduct which forms the basis of the crime for which a

defendant    is   held   criminally   responsible.”      Id.   at   465   (quoting

Commonwealth v. Harner, 617 A.2d 702, 706 (Pa. 1992)).




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     In light of these principles, it is clear to us that the trial court did not

have the authority to impose restitution in an amount that exceeded the

value of the items for which Gentry was held criminally responsible. Gentry

pleaded guilty, inter alia, to one count of receiving stolen property.       The

Commonwealth charged Gentry in the criminal information as follows:

     Count 4:    RECEIVING STOLEN PROPERTY

                 18 Pa.C.S.A. 3925(a) – Felony 3rd DEGREE

     The Actor intentionally received, retained, or disposed of
     moveable property, namely, jewelry and/or a military purple
     heart medal, having a total value of approximately $2,000.00,
     belonging to Joseph Alley, knowing that it was stolen or believing
     that it had probably been stolen, with no intent to restore it to
     the owner, in violation of Section 3925 of the Pennsylvania
     Crimes Code.

Information, 6/2/2009, at 2.    Neither the $42,000 in cash or any of the

other items that purportedly were stolen were listed within the charge. More

importantly, Gentry was never charged with burglary, theft, or any other

crime related to the removal of the safe and its contents from the residence.

Per Harriet and Harner, Gentry can only be sentenced to repay Mr. Alley

the value of the loss that directly flowed from the behavior for which he is

criminally responsible. Here, Gentry pleaded guilty to the crime as charged.

Thus, he is only criminally responsible for the approximate value of the

goods that he retained, knowing that they were stolen, i.e., approximately

$2,000. By sentencing Gentry to repay the total amount of goods that were

stolen, which far exceeded the value for which Gentry was directly criminally



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responsible, the trial court palpably exceeded its statutory authority.

Consequently, the restitution aspect of Gentry’s sentence is illegal.

      Once again, we vacate the judgment of sentence, and we remand for a

new sentencing hearing, limited to the amount of restitution owed to Mr.

Alley based strictly upon the conduct for which Gentry is criminally

responsible. Because we vacate and remand for a new hearing, we need not

address Gentry’s second claim, in which he contends that this award was

not supported by sufficient evidence.

      Judgement of sentence vacated.          Case remanded.        Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2015




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