J-S13011-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

    JERMAINE L. MARTIN

                             Appellant               No. 1362 MDA 2019


          Appeal from the Judgment of Sentence Entered May 3, 2019
                In the Court of Common Pleas of Berks County
              Criminal Division at No: CP-06-CR-0001842-2016


BEFORE:       STABILE, J., DUBOW, J., and PELLEGRINI, J.*

MEMORANDUM BY STABILE, J.:                             FILED JULY 13, 2020

        Appellant, Jermaine L. Martin, appeals from the May 3, 2019 judgment

of sentence imposing seven years of probation and $2,182.00 in restitution to

Hertz Corporation (“Hertz”) for theft of leased property.1 We affirm.

        Appellant pled guilty to the aforementioned offense at a May 3, 2019

guilty plea colloquy and sentencing. He admitted he rented a 2015 Chevrolet

Cruze from Hertz and never returned it.        Police eventually recovered the

vehicle for Hertz. The trial court accepted the plea and imposed sentence as

set forth above. At that same proceeding, the trial court imposed sentence at

docket number 442 of 2016 (“Number 442”), which is presently on appeal in


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1    18 Pa.C.S.A. § 3932(a).
J-S13011-20


a companion case at 1361 MDA 2019. At Number 442, the trial court imposed

restitution of $48,789.76 the Wilson Junior Soccer Club (“WJSC”).         In the

instant matter, the trial court directed that the WJSC receive priority over

Hertz in receiving restitution payments.    The trial court denied Appellant’s

timely post-sentence motion, and this timely appeal followed.

      Appellant presents two questions for our review:

         1. Whether the trial court imposed an illegal sentence when it
      imposed restitution from an unrelated criminal docket in the
      instant matter?

         2. Whether the trial court erred by imposing a sentence of
      seven (7) years probation consecutive to the sentence imposed in
      [Number 442], when the aforementioned docket has no nexus to
      the instant docket and when the Commonwealth recommended,
      and [Appellant] requested, a concurrent sentence.

Appellant’s Brief at 8.

      The first issue need not detain us long. Appellant asserts, correctly, that

an order of restitution must flow directly from damages in the case.         The

Pennsylvania Crimes Code provides as follows:

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

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

             (2) the victim, if an individual, suffered personal injury
      directly resulting from the crime,

            the offender shall be sentenced to make restitution in
      addition to the punishment prescribed therefor.

18 Pa.C.S.A. § 1106(a); see also, Commonwealth v. Harner, 617 A.2d 702

705 (Pa. 1992) (“holding that § 1106 is applicable only upon conviction for a

                                      -2-
J-S13011-20


crime wherein property has been stolen, converted, unlawfully obtained or its

value substantially decreased, or where the victim suffers personal injury

directly resulting from a crime.”). Furthermore, § 1106(c) provides that the

trial court “shall” set priority of payment when it orders restitution to more

than one victim at a time. 18 Pa.C.S.A. § 1106(c).

      Imposition of restitution without statutory authority implicates the

legality of a sentence. Commonwealth v. Ramos, 197 A.3d 766, 768 (Pa.

Super. 2018). Instantly, the trial court acted exactly in accord with § 1106.

Appellant admitted that he leased a car from Hertz and did not return it, and

he admitted that Hertz suffered $2182.00 in damages. The trial court ordered

restitution in that amount. Contrary to Appellant’s argument, the trial court

did not impose restitution from an unrelated matter (i.e. Number 442). The

trial court referenced Number 442 because it was statutorily required to

address priority of payment under § 1106. Thus, the fact that the trial court

ordered the WJSC to receive priority of payment over Hertz does not render

the sentence illegal.

      In his second argument, Appellant claims the trial court abused its

sentencing discretion in imposing a seven-year probation term to run

consecutive to the sentence at Number 442. In order to preserve a challenge

to the trial court’s sentencing discretion, an appellant must (1) file a timely

post-sentence motion; (2) file a timely notice of appeal; (3) include in his

appellate brief at concise statement of the reasons relied upon for allowance


                                     -3-
J-S13011-20


of appeal pursuant to Pa.R.A.P. 2119(f); and (4) present a substantial

question for review. Commonwealth v. Glass, 50 A.3d 720, 726 (Pa. Super.

2012), appeal denied, 63 A.3d 774 (Pa. 2013). Appellant has complied with

the first three requirements. We therefore must determine whether Appellant

raises a substantial question. “A substantial question exists “only when the

appellant advances a colorable argument that the sentencing judge's actions

were either: (1) inconsistent with a specific provision of the Sentencing Code;

or (2) contrary to the fundamental norms which underlie the sentencing

process.” Id. at 727.

      In his Pa.R.A.P. 2119(f) statement, Appellant claims his sentence in this

case was motivated by the facts of Number 442. That is, Appellant claims the

trial court based its sentence on conduct other than the conduct at issue in

this case.   We conclude this argument raises a substantial question.           We

therefore proceed to the merits.

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge. The standard employed when reviewing the
      discretionary aspects of sentencing is very narrow. We may
      reverse only if the sentencing court abused its discretion or
      committed an error of law. A sentence will not be disturbed on
      appeal absent a manifest abuse of discretion. In this context, an
      abuse of discretion is not shown merely by an error in judgment.
      Rather, the appellant must establish, by reference to the record,
      that the sentencing court ignored or misapplied the law, exercised
      its judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision. We must accord
      the sentencing court's decision great weight because it was in the
      best position to review the defendant's character, defiance or
      indifference, and the overall effect and nature of the crime.

Commonwealth v. Cook, 941 A.2d 7, 11–12 (Pa. Super. 2007).

                                       -4-
J-S13011-20


      In the argument section of his brief, Appellant claims the trial court

abused its discretion in considering the restitution Appellant owed at Number

442. That is, the trial court imposed seven years of probation here, but noted

that this sentence could be terminated without further petition to the trial

court if Appellant completed his restitution payments prior to the expiration of

his sentence at Number 442. N.T. Guilty Plea and Sentencing, 5/3/19, at 24.

      We conclude that the record contradicts Appellant’s argument. The trial

court did not impose a more severe sentence based on the circumstances of

Number 442. Rather, the trial court made it possible for Appellant to serve

no sentence at all in this if he makes full restitution prior to the completion

of his sentence at 442.      The court had discretion to run this sentence

consecutive to Number 441. Commonwealth v. Mouzon, 828 A.2d 1126,

1130 (Pa. 2003). Furthermore, the applicable standard guideline range called

for three to twelve months of incarceration. N.T. Guilty Plea and Sentencing,

5/3/19, at 10. Appellant identifies no basis upon which the trial court abused

its discretion in imposing a mitigated sentence to run consecutively to the

sentence at Number 442.

      Based on the foregoing, we conclude that Appellant has not raised any

meritorious challenge to his sentence. We therefore affirm.

      Judgment of sentence affirmed.




                                     -5-
J-S13011-20


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/13/2020




                          -6-
