J-A13030-19

                                   2019 PA Super 294

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    YAHYA ASAAD MUHAMMED                       :
                                               :
                       Appellant               :   No. 1087 EDA 2018

             Appeal from the Judgment of Sentence March 6, 2018
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0004632-2017


BEFORE:      SHOGAN, J., NICHOLS, J., and STRASSBURGER, J.*

OPINION BY NICHOLS, J.:                            FILED SEPTEMBER 30, 2019

        Appellant Yahya Asaad Muhammed appeals from the judgment of

sentence entered after he pled guilty to criminal trespass.1           On appeal,

Appellant challenges the trial court’s restitution award. For the reasons that

follow, we vacate and remand for resentencing.

        The relevant facts giving rise to this appeal are well known to the

parties, and we need not restate them here.              Briefly, the trial court

summarized the procedural history of this matter as follows:

        On March 5, 2018, . . . Appellant[, who was represented by
        counsel,] entered into a negotiated guilty plea to criminal
        trespass, a felony of the third degree, and the Commonwealth
        nolle prossed the remaining charges.


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*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. § 3503(a)(1)(i).
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       In accordance with the plea agreement, the [trial court] sentenced
       Appellant to 11½ to 23 months in the county correctional facility,
       to pay court costs, and to pay the restitution amount ordered by
       the [trial c]ourt joint and several with his co-defendant, Lorna
       Fretwell.[2] The [trial court] did not impose a restitution amount
       at that time.

                                       *       *   *

       On March 12, 2018, the [trial c]ourt held a restitution hearing.[3]
       Following the restitution hearing, the [trial c]ourt ordered
       Appellant to pay restitution joint and several with co-defendant,
       Lorna Fretwell (criminal docket 4631-2017), to the victim in
       monthly installments as directed by the Montgomery County Adult
       Probation and Parole Department totaling $8,825.98.

Trial Ct. Op., 6/12/18 at 2-3.

       On March 20, 2018, the trial court docketed Appellant’s pro se motion

seeking arrest of judgment and withdrawal of his guilty plea. On April 10,

2018, the trial court docketed Appellant’s pro se notice of appeal, in which he

included a statement of errors complained of on appeal.4        The trial court
____________________________________________


2 The Commonwealth indicated to the trial court that “per our agreement,
[Appellant] and his co-defendant will have a restitution hearing with our
victim, and any restitution that [the trial court] imposes shall be joint and
several with [Appellant’s] co-defendant . . . .” See N.T. Guilty Plea Hr’g,
3/5/18, at 3-4.

3 At the restitution hearing, the victim’s granddaughter testified regarding the
items that were damaged or missing from the home after the crimes occurred.
See N.T. Restitution Hr’g, 3/12/18, at 20-45. She also provided listings from
eBay and Lowe’s to establish the approximate value of those items. Id.

4 Appellant was represented by counsel at the time his pro se filings were
docketed by the trial court. We note that pro se filings submitted by counseled
defendants are generally treated as legal nullities. See Commonwealth v.
Ali, 10 A.3d 282, 293 (Pa. 2010). However, this Court has also recognized
that a counseled defendant may act on his own behalf to protect important



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denied Appellant’s post-sentence motion on May 22, 2018.5 Thereafter, the

trial court issued a Pa.R.A.P. 1925(a) opinion asserting that Appellant’s claims

were meritless.     On August 20, 2018, this Court issued an order directing

Appellant’s trial counsel, Vanessa L. Bellino, Esq., to enter her appearance on

Appellant’s behalf.

       Appellant raises one issue on appeal: “Did the [t]rial [c]ourt err by

awarding restitution that is speculative, unsupported by the record, and does

not even relate to the crime for which [Appellant] pleaded guilty?” Appellant’s

Brief at 2. Appellant first argues that “the bulk of the items contained within

the restitution order were not lost or damaged as a direct result of the crime

for which [Appellant] pleaded guilty.” Id. at 15. Second, Appellant asserts

that “the restitution order awarded the victim more than the cash equivalent

of the property lost due to the crime.” Id. at 19. Third, Appellant contends

that the order was “speculative and unsupported by the record.” Id. at 26.

____________________________________________


rights where counsel remains technically attached to the case, but is no longer
serving his client’s interest. See Commonwealth v. Williams, 151 A.3d
621, 624 (Pa. Super. 2016) (requiring this Court to docket a timely pro se
notice of appeal filed by counseled litigant).

5 Appellant’s notice of appeal was docketed while his post-sentence motion
was still pending with the trial court. However, because the trial court
subsequently denied Appellant’s post-sentence motion, we will treat
Appellant’s notice of appeal as timely. See Commonwealth v. Ratushny,
17 A.3d 1269, 1271 n.4 (Pa. Super. 2011) (stating that when the trial court
denies a defendant’s post-sentence motion after the filing of a premature
notice of appeal, this Court will treat the defendant’s premature notice of
appeal as having been filed on the date of the order disposing of the post-
sentence motion).

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      Our review of Appellant’s claims depends on the nature of the issue

being raised. It is well settled that a challenge to the legality of a sentence

raises a question of law. Commonwealth v. Smith, 956 A.2d 1029, 1033

(Pa. Super. 2008) (en banc). In reviewing this type of claim, our standard of

review is de novo and our scope of review is plenary. Commonwealth v.

Childs, 63 A.3d 323, 325 (Pa. Super. 2013). “An illegal sentence must be

vacated[.]”   Commonwealth v. Ramos, 197 A.3d 766, 769 (Pa. Super.

2018) (citation and quotation marks omitted). Further, we have explained

that “a criminal defendant cannot agree to an illegal sentence, so the fact that

the illegality was a term of his plea bargain is of no legal significance.”

Commonwealth v. Rivera, 154 A.3d 370, 381 (Pa. Super. 2017) (en banc)

(citation and quotation marks omitted), appeal denied, 169 A.3d 1072 (Pa.

2017). Moreover, “a challenge to the legality of the sentence can never be

waived and may be raised by this Court sua sponte.” Commonwealth v.

Wolfe, 106 A.3d 800, 801 (Pa. Super. 2014) (citation omitted).

      In contrast, a defendant does not have an absolute right to pursue a

challenge to the discretionary aspects of a sentence. See Commonwealth

v. Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012) (en banc). Rather, before

reaching the merits of such claims, we must determine whether (1) the appeal

is timely; (2) the defendant preserved his issues; (3) the defendant included

a concise statement of reasons for the discretionary sentence claim in his

brief; and (4) the sentence is inappropriate under the sentencing code. See

Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citation

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omitted).   If a defendant invokes this Court’s jurisdiction to review the

discretionary aspects of a sentence, we review a sentence for an abuse of

discretion. Commonwealth v. Smith, 206 A.3d 551, 567 (Pa. Super. 2019).

      Section 1106 of the Crimes Code governs the imposition of restitution

as part of a sentence and provides, in relevant part:

      § 1106. Restitution for injuries to person or property

      (a)   General rule.—Upon conviction for any crime wherein:

         (1) property has been stolen, converted or otherwise
         unlawfully obtained, or its value substantially decreased as
         a direct result of the crime; or

         (2) 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:

            (i) Regardless of the current financial resources of the
            defendant, so as to provide the victim with the fullest
            compensation for the loss. . . .

                                  *    *    *

         (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.

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                                   *    *    *

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

18 Pa.C.S. § 1106.

      We have explained that there is a

      distinction between claims that challenge the sentencing court’s
      statutory authority to impose restitution, and those which
      seemingly concede such authority, but challenge the court’s
      exercise of discretion in determining the appropriate amount of
      restitution. Accordingly, in determining whether a particular claim
      implicates the legality or discretionary aspects of sentencing, we
      do not merely look at the manner in which a restitution challenge
      is phrased; we must instead examine the specific nature of the
      claim presented to determine whether it challenges the sentencing
      court’s statutory authority to impose restitution, or its discretion
      in determining the amount of restitution.

Commonwealth v. Weir, 201 A.3d 163, 172 (Pa. Super. 2018) (citation

omitted), appeal granted, 14 WAL 2019, 2019 WL 2590591 (Pa. filed June 25,

2019).

      In sum, “a challenge to the legality of sentence is presented when the

defendant claims that the trial court lacked statutory authority to impose

restitution because the Commonwealth failed to establish one or more of the

requirements of section 1106(a).” Id. at 172 (citation omitted). “Conversely,

where the Commonwealth has established each element of § 1106(a), i.e.,

the victim suffered loss to person or property directly caused by the specific



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crime committed by the defendant, a claim that the restitution order is

excessive implicates the discretionary aspects of sentencing.”       Id. at 174

(citations omitted); see Commonwealth v. Holmes, 155 A.3d 69, 78 (Pa.

Super. 2017) (stating that where “statutory authority exists . . . the imposition

of restitution is vested within the sound discretion of the sentencing judge”

(citation omitted)).

      Initially, we observe that the trial court accepted Appellant’s negotiated

plea and imposed sentence on March 5, 2018.         See N.T. Guilty Plea Hr’g,

3/5/18, at 13. As part of the sentence, the trial court ordered Appellant to

pay court costs plus a restitution amount that would be determined at a future

hearing. Id. at 13-14. However, the trial court did not specify a restitution

amount or payment method. See id.; see also Sentencing Order, 3/5/18, at

2.

      In Ramos, the defendant entered a nolo contendere plea to criminal

mischief. Ramos, 197 A.3d at 768. The trial court sentenced the defendant

to pay a fine and court costs, but scheduled a separate restitution hearing for

another date. Id. On appeal, this Court explained that the trial court “initially

imposed a generalized, open-ended sentence of restitution, which is a matter

we can raise sua sponte as an illegal sentence.” Id. (citation omitted). The

Ramos Court reiterated that Section 1106 “mandates an initial determination

of the amount of restitution at sentencing,” and concluded that the trial court

must impose “some amount and method of restitution at the initial




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sentencing.” Id. at 770 (citations omitted and emphasis in original); see also

18 Pa.C.S. § 1106(a), (c)(2). The Court further explained that

       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. (citations omitted and emphasis added).

       Here, as in Ramos, the trial court “imposed a generalized, open-ended

sentence of restitution.”6 See N.T. Guilty Plea Hr’g, 3/5/18, at 13; Ramos,

197 A.3d at 768.        Pursuant to Section 1106(c)(2), the trial court had no

authority to impose restitution while deferring the amount and method of

payment for decision at a later date. See 18 Pa.C.S. § 1106(c)(2); Ramos,

197 A.3d at 771. Therefore, the March 5, 2018 sentencing order is illegal, the

entire sentence must be vacated, and this matter must be remanded for

resentencing. See Ramos, 197 A.3d at 770-71.

       Although we have concluded that remand is necessary based on the

illegal sentencing order, we will address Appellant’s claims relating to the trial

court’s restitution award.

       Appellant’s first claim focuses on the imposition of restitution for

property that was not lost or damaged as a direct result of his conviction for

____________________________________________


6 Although Appellant did not challenge the validity of the March 5, 2018
sentencing order, this Court may consider this issue sua sponte. See Wolfe,
106 A.3d at 801.

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J-A13030-19



criminal trespass. By way of further background to this claim, we note the

following. At the plea hearing, Appellant admitted that he entered the victim’s

home, “remained inside, that items were removed and/or damaged,” and that

he knew he did not have a legal right to be in the residence. N.T. Plea Hr’g,

3/5/18, at 9. Appellant, however, pled guilty to criminal trespass,7 and the

Commonwealth withdrew the charges related to theft. Moreover, Appellant’s

co-defendant did not plead guilty to a theft offense.8

       On appeal, Appellant argues that because he pled guilty to criminal

trespass, “only property that was ‘unlawfully obtained or its value substantially

decreased as a direct result of’ the trespass may be ordered as restitution.”

Appellant’s Brief at 18. Appellant asserts that “[i]t is improper for the [trial

c]ourt to order restitution for any counts for which [Appellant] was not

convicted.”    Id. at 18.      Specifically, Appellant challenges the trial court’s

decision to impose restitution for property that was stolen or damaged after

he entered the home. Id. at 19.

       This claim goes to the legality of the sentence. See Weir, 201 A.3d at

172 (noting that “[b]ecause of the statutory language ‘directly resulting from


____________________________________________


7 Pursuant to 18 Pa.C.S. § 3503, “[a] person commits [criminal trespass] if,
knowing that he is not licensed or privileged to do so, he . . . enters, gains
entry by subterfuge or surreptitiously remains in any building or occupied
structure or separately secured or occupied portion thereof[.]”

8 Appellant’s co-defendant pled guilty to criminal mischief under 18 Pa.C.S. §
3304(a)(5) which provides that “[a] person is guilty of criminal mischief if he
. . . intentionally damages real or personal property of another[.]”

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the crime,’ restitution under § 1106(a) is proper only if there is a direct causal

connection between the crime and the loss.” (citation omitted)).

      We have explained that

      [i]n fashioning an award of restitution, the sentencing court must
      consider the extent of injury suffered by the victim, the victim’s
      request for restitution, and such other matters as it deems
      appropriate. See 18 Pa.C.S. § 1106(c)(2)(i). To determine the
      correct amount of restitution, a “but-for” test is used to identify
      damages which occurred as a direct result of the crime and which
      should not have occurred but for the defendant’s criminal conduct.
      Commonwealth v. Gerulis, . . . 616 A.2d 686, 697 ([Pa.] 1992).

Weir, 201 A.3d at 171.

      For example, in Commonwealth v. Poplawski, 158 A.3d 671, 674-75

(Pa. Super. 2017), the defendant was convicted for home improvement fraud

after he received $2,000 for services he never performed. At sentencing, the

trial court imposed $41,637 in restitution as if the defendant had been

convicted of “deceptive or fraudulent business practices,” even though

defendant was acquitted of that crime.        On appeal, this Court vacated the

restitution order because the amount of restitution was not a direct result of

the defendant’s criminal conduct nor was it supported by the record. Id.

      In Commonwealth v. Rotola, 173 A.3d 831 (Pa. Super. 2017), the

defendant and his brother agreed to sell jewelry that a friend obtained from

the victim during a burglary. Id. at 833. The defendant drove his brother to

a pawnshop to complete the sale. The next day, after discovering that his

brother had mistakenly left some of the jewelry in his car, the defendant

returned to the pawnshop and sold those items. Ultimately, the defendant

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pled guilty to one count of theft of property lost, mislaid, or delivered by

mistake. Id. At sentencing, the trial court ordered the defendant and his co-

defendant to pay $25,000 restitution. Id.

      On appeal, the defendant in Rotola argued that the amount was “not

commensurate with his degree of criminality nor supported by the record,” id.

at 834, because he was only responsible for selling “a relatively small portion

of the items stolen from the victim to a pawn shop.” Id. at 835. He alleged

that because he did not commit the initial burglary, he could not be liable for

the full amount of restitution.   Id.   This Court rejected the defendant’s

argument. Id. We noted that “while [the defendant] may feel that he is less

culpable for the loss caused to the victim because he did not actually break

into the victim’s home and steal her possessions [the defendant and his co-

defendant] acted together criminally to cause a single harm to the victim . . .

.” Id.

      Here, Appellant and his co-defendant pled guilty, and in doing so,

admitted to conduct consistent with those crimes. At the restitution hearing,

the trial court concluded that the items missing from the victim’s residence

were a direct result of Appellant’s and his co-defendant’s criminal conduct.

However, because neither Appellant nor his co-defendant were held criminally

accountable for the theft of items from the victim’s home, the trial court

imposed an illegal sentence when it ordered restitution for those losses. See

Poplawski, 158 A.3d at 675.




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      However, we discern no error in the trial court’s imposition of restitution

for the damaged items under Section 1106(a) because the property damage

was a direct result of Appellant’s criminal conduct. See Rotola, 173 A.3d at

835. At the plea hearing, Appellant agreed that he entered the property with

his co-defendant and that property damage or theft occurred. See N.T. Plea

Hr’g, 3/5/18, at 9. Further, Appellant’s co-defendant pled guilty to criminal

mischief, which includes property damage as an element of the offense. As

in Rotola, Appellant and his co-defendant acted together criminally to cause

a single harm to the victim. See Rotola, 173 A.3d at 835. Therefore, the

trial court properly ordered that Appellant make restitution jointly and

severally with his co-defendant. See id.

      Appellant’s remaining claims relate to the amount of restitution.

Appellant first argues that “the restitution order awarded the victim more than

the cash equivalent of the property lost due to the crime.” Appellant’s Brief

at 19.        Appellant also contends that the order was “speculative and

unsupported by the record.” Id. at 26. In support, Appellant asserts that the

witness did not testify regarding the actual items that were lost or the value

of those items. Id. at 27, 30.

      These claims relate to the discretionary aspects of Appellant’s sentence.

See Weir, 201 A.3d at 174 (stating that where a defendant’s claim “concerns

the amount of restitution ordered, rather than the propriety of restitution, his

claim implicates the discretionary aspects of his sentence” (emphasis in

original)).     Therefore, in light of our disposition, we decline to address

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Appellant’s claims challenging the discretionary aspects of his sentence.9 See

Commonwealth v. Barnes, 167 A.3d 110, 122 n.9, 125 n.13 (Pa. Super.

2017) (en banc) (concluding that this Court “need not address” discretionary

sentencing claims when the matter is remanded for resentencing and stating

that on remand, “the sentencing judge should start afresh” (citation omitted)).

       In sum, we conclude that the March 5, 2018 sentencing order was illegal

because the trial court had no authority to impose restitution while deferring

the amount and method of payment for decision at a later date.           See 18

Pa.C.S. § 1106(c)(2); Ramos, 197 A.3d at 771. Further, the order imposing

restitution in the amount of $8,825.98 was also illegal, as there was no causal

connection between the restitution imposed for the victim’s stolen property

and the crimes for which Appellant was held criminally responsible.          See

Rotola, 173 A.3d at 831; Poplawski, 158 A.3d at 674-75.

       On remand, the trial court shall conduct a new sentencing hearing. If

the trial court determines that restitution is appropriate, then it must make

an initial determination of that amount at the time of sentencing. After the


____________________________________________


9 Additionally, we note that if Appellant seeks to raise these claims in an appeal
following resentencing, he should properly preserve them before the trial court
and in his appeal. See Weir, 201 A.3d at 174; see also Corley, 31 A.3d at
296. As indicated previously, the Pennsylvania Supreme Court recently
granted a petition for allowance of appeal in Weir to decide whether a claim
that the restitution amount is speculative and unsupported by the record can
implicate the legality of a sentence. As of today, however, both the parties
and this Court are bound by our decision in Weir. See Commonwealth v.
Reed, 107 A.3d 137, 143 (Pa. Super. 2014) (stating that we are bound by
existing precedent until such time it is overturned).

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restitution hearing, the trial court may modify the amount to reflect those

losses that directly resulted from Appellant’s conduct.

      Judgment of sentence vacated. Case remanded for a new sentencing

hearing. Jurisdiction relinquished.

      Judge Strassburger joins the opinion.

      Judge Shogan files a concurring and dissenting opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/30/19




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