J-A16016-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

KARL K KALKBRENNER

                            Appellant                  No. 1094 WDA 2012


            Appeal from the Judgment of Sentence January 6, 2012
              In the Court of Common Pleas of Venango County
             Criminal Division at No(s): CP-61-CR-0000619-2003


BEFORE: DONOHUE, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                               FILED JANUARY 14, 2015

       Karl K. Kalkbrenner appeals from the judgment of sentence imposed

on January 6, 2012, and as amended on June 18, 2012, in the Venango

County Court of Common Pleas.              On November 17, 2011, a jury found

Kalkbrenner guilty of driving under the influence of alcohol (“DUI”)

(incapable of safe driving).1 Moreover, the court convicted him of careless

driving, driving a vehicle at safe speed, and failure to keep right.2 The court

sentenced Kalkbrenner to county imprisonment for a period of 30 days to 24

months, as well as fines, costs, and restitution.       On appeal, Kalkbrenner

complains the court erred in awarding restitution and witness travel fees,
____________________________________________


1
    See 75 Pa.C.S. § 3731(a)(1).
2
    See 75 Pa.C.S. §§ 3714, 3361, and 3301, respectively.
J-A16016-14


and by failing to dismiss the summary offenses based on the statute of

limitations. For the reasons set forth below, we affirm.

      The trial court set forth the facts and lengthy procedural history as

follows:

            [Kalkbrenner] was convicted by a jury on June 19, 2008,
      of Driving Under the Influence of Alcohol – General Impairment
      in violation of 75 Pa.C.S.A. § 3731(a)(1),1 a Misdemeanor 2,
      based upon events which resulted in a motor vehicle accident on
      February 10, 2003.          Evidence at trial established that
      [Kalkbrenner]’s vehicle crossed into the oncoming lane of traffic
      while negotiating a turn during snowy and icy road conditions.
      [Kalkbrenner]’s vehicle then caused a head-on collision with a
      van carrying eleven (11) passengers, at least seven (7) of whom
      suffered serious bodily injury.2
            1
              75 Pa.C.S.A. § 3731(a)(1) is now 75 Pa.C.S.A. §
            3802(a).
            2
                Most of the passengers in the van were Amish.
            Some passengers declined to pursue legal action as
            it conflicted with various tenets of their faith. Thus,
            it is highly likely that more than seven (7)
            passengers received some bodily injury and property
            damage in the accident but chose not to participate
            in this case.

            [Kalkbrenner] was acquitted by the jury of seven (7)
      counts of Aggravated Assault by Vehicle While DUI as to the
      seven (7) passengers in the van, in violation of 75 Pa.C.S.A. §
      3735.1(a), a Felony 2, as well as Driving Under the Influence of
      Alcohol, in violation of 75 Pa.C.S.A. § 3731(a)(4),3 a
      Misdemeanor 2. The court found [Kalkbrenner] guilty of the
      following Summary Offenses: Careless Driving, in violation of 75
      Pa.C.S.A. §3714; Driving a Vehicle at Safe Speed in violation of
      75 Pa.C.S.A. § 3361, and Failure to Keep Right, in violation of 75
      Pa.C.S.A. § 3301(a). The court found [Kalkbrenner] not guilty of
      Failure to Use Safety Belt System, in violation of 75 Pa.C.S.A.
      [§] 4581(a)(2).




                                     -2-
J-A16016-14


          3
            75 Pa.C.S.A. § 3731(a)(4) is now 75 Pa.C.S.A. §
          3802(b).

            On September 2, 2008, this court sentenced [Kalkbrenner]
     to ninety (90) days of imprisonment, the first thirty (30) days to
     be served incarcerated in the Venango County Jail, and the
     remaining sixty (60) days to be served on house
     arrest/electronic monitoring.   This court also imposed fines,
     costs, and fees in connection with the vehicle code violations, as
     well as restitution, due to the injuries [Kalkbrenner] caused to
     the seven (7) victims as the result of the accident when
     [Kalkbrenner]’s vehicle crossed over into oncoming traffic and
     collided with the passenger van.       The aggregate restitution
     amount ordered amounted to $128,403.05.4
          4
              The Sentencing Order lists the amount owed to
          each individual victim in this case, as identified by
          claim numbers.

           On September 11, 2008, [Kalkbrenner] filed consolidated
     Post Sentence Motions for Relief which were granted in part and
     denied in part in our Opinion and Order of Court dated January
     8, 2009. [Kalkbrenner] filed his Notice of Appeal on February 5,
     2009. This court received the Concise Statement on February
     25, 2009, and we issued our [Pa.R.A.P.] 1925(a) Opinion on
     April 15, 2009. Subsequently, the Superior Court, in its opinion
     dated November 3, 2010, reversed judgment of sentence and
     remanded for a new trial.

            On November 17, 2011, [Kalkbrenner] was tried again and
     found guilty of one (1) count of Driving Under the Influence of
     Alcohol/Incapable of Safe Driving, in violation of 75 Pa.C.S.A. §
     3731(a)(1), a Misdemeanor 2; one (1) count of Careless Driving,
     in violation of 75 Pa.C.S.A. § 3714, a Summary Offense; one (1)
     count of Driving a Vehicle at Safe Speed, in violation of 75
     Pa.C.S.A. § 3361, a Summary Offense; and one (1) count of
     Failure to Keep Right, in violation of 75 Pa.C.S.A. § 3301, a
     Summary Offense. Subsequently, [Kalkbrenner] was sentenced
     on January 6, 2012. In our Sentence and Order of Court,
     [Kalkbrenner] was sentenced to fines, costs, and restitution.5
          5
             The breakdown of individual restitution amounts is
          itemized in our Sentence and Order of Court dated
          January 6, 2012.

                                   -3-
J-A16016-14



           On January 17, 2012, [Kalkbrenner] filed Post Sentence
     Motions and a hearing was subsequently scheduled for February
     9, 2012, but was later continued to April 30, 2012.6 In the
     meantime, [Kalkbrenner] filed a Supplemental Post Sentence
     Motion on March 29, 2012, which was followed by a Second
     Supplemental Post Sentence Motion filed on April 3, 2012. [An
     evidentiary hearing was held on April 30, 2012.]        Defense
     counsel further filed a Memorandum of Corrections [that same
     day].7 By Order of Court dated June 18, 2012, we amended our
     Sentence and Order of Court dated January 6, 2012.
     [Kalkbrenner] filed his Notice of Appeal on July 11, 2012. That
     same day, [Kalkbrenner] was directed to file with this court a
     Concise Statement of Errors Complained of on Appeal in
     accordance with Pa.R.A.P. 1925. The present Concise Statement
     was filed on July 31, 2012.8
          6
              We issued an Order of Court dated February 1,
          2012, scheduling a Restitution Hearing for March 29,
          2012. Subsequently, the court was informed of the
          unavailability of the victims on that day, therefore
          we continued the hearing until July 6, 2012, by
          Order of Court dated March 29, 2012. Later that
          day[,] we vacated the Order scheduling the
          restitution hearing, preferring instead to hear
          arguments on restitution along with the other issues
          raised in [Kalkbrenner]’s Post Sentence Motions for
          Relief, which was then scheduled for April 30, 2012.
          7
               Defense counsel’s filing was actually titled
          “Memorandum and Summary of Corrections,
          Alterations, and Fixes to be made to Restitution,
          Fees and Costs.”
          8
               The Commonwealth also appealed to Superior
          Court our Order of Court dated June 18, 2012. The
          Commonwealth was directed to file its Concise
          Statement by Order of Court dated July 23, 2012,
          which was subsequently done on August 13, 2012.
          The Commonwealth’s appeal was later dismissed for
          failure to comply with Pa.R.A.P. 3517, in a Per
          Curiam Order by the Superior Court dated
          September 17, 2012.


                                  -4-
J-A16016-14


Trial Court Opinion, 11/13/2012, at 1-3.

      For purposes of this appeal, we will set forth the January 6, 2012

judgment of sentence, and the June 18, 2012, amended sentence. In the

January 6th judgment, the court stated, in relevant part:

             AND NOW, this 6th day of January 2012, the SENTENCE
      and ORDER of Court on Count 1, Driving Under the Influence of
      Alcohol/Incapable of Safe Driving, in violation of 75 Pa.C.S.A. §
      3731(a)(1), a Misdemeanor 2, is that you, Karl K. Kalkbrenner,
      Defendant, pay [a] fine of $700.00, pay the costs of
      prosecution and all other costs, pay an additional mandatory
      cost of $100.00 pursuant to 18 Pa.C.S.A. § 7508.1(c), and make
      restitution payable to the Clerk of Courts, Venango County
      Courthouse, Franklin, Pennsylvania, 16323, in the amount of
      $57,603.70 for the use of Donald Seeley …; and in the amount
      of $354.84 for the use of Peter Leslein …; in the amount of
      $3,732.00 for the use of Lester Byler …; and in the amount of
      $435.00 for the use of Jeremiah Miller …; and in the amount of
      $600.00 for the use of Henry Byler …; and in the amount of
      $142.00 for the use of Alton Miller …; and in the amount of
      $5,741.05 for the use of Amos Lee …; and in the aggregate
      amount of $59,794.46 for the use of The Crime Victims
      Compensation Fund, specifically claim #200303557 in the
      amount of $8,995.44; claim #200303562 in the amount of
      $516.14; claim #200303563 in the amount of $11,889.15; claim
      #200303564 in the amount of $406.04; claim #200303565 in
      the amount of $2,987.69; claim #200303569 in the amount of
      $35,000.00, P.O. Box 1167, Harrisburg, Pennsylvania 17108-
      1167, (the aggregate total of restitution ordered is
      $128,403.05), and undergo an imprisonment in the VENANGO
      COUNTY JAIL for and during the period of not less than THIRTY
      (30) DAYS, and not more than TWENTY-FOUR (24) MONTHS
      LESS ONE DAY, to be computed from today’s date, at the Jail to
      be kept, fed, clothed, and treated as the law directs, and stand
      committed to the custody of the Warden that sentence may be
      carried into execution.




                                    -5-
J-A16016-14


Sentence, 1/6/2012, at 1-2 (some emphases removed and some emphases

added).3

       In the June 18, 2012, amended sentencing order, the court stated, in

relevant part:

              Under 18 Pa.C.S.A. § 1106 and 42 Pa.C.S.A. § 9721,
       the Court is mandated to impose restitution upon a
       defendant convicted for a crime that results in the victim
       sustaining injury from the defendant’s criminal act.
       Therefore, our Sentence and Order of Court dated January 6,
       2012, remains in effect with the following changes. As the
       Crimes Victims Compensation Fund received $16,009.47, under
       its right of subrogation, the aggregate amount of $59,794.46
       [Kalkbrenner] was ordered to pay to the Crime Victims
       Compensation Fun is reduced to $43,784.99. The individual
       people referenced in our previously referenced Order of Court, to
       whom [Kalkbrenner] shall make restitution payments, also stays
       in effect. Any releases signed due to settlements in civil
       cases against the defendant do not serve to offset
       restitution requirements. See Commonwealth v. Pleger, 934
       A.2d 715, 720-721 (Pa. Super. Ct. 2007). In addition, as
       [Kalkbrenner] was successful in an appeal to the Superior Court
       at Docket Number 182 WDA 2009, pursuant to Pa.R.A.P.
       2741(3), 2742, 2743, and 2771, he is entitled to all allowable
       costs, totaling $230.92. Said costs to be credited against the
       outstanding cost owed in the above captioned case by
       [Kalkbrenner]. Furthermore, the reduction in the billed amount
       from Dr. Vey to $2,500.00, in our Order of Court dated
       September 17, 2008, remains.

             At the time of sentencing, the Court imposed restitution
       regarding the victim, Donald Seeley, in the aggregate amount of
       $57,603.70. The Commonwealth did not supply any breakdown
       of this total and it is the understanding of the Court that this
       amount reflected the medical bills incurred by Donald Seeley.
____________________________________________


3
   The court also ordered Kalkbrenner to pay a fine of $25.00 for each of his
summary convictions, careless driving, driving a vehicle at a safe speed, and
failure to keep right.



                                           -6-
J-A16016-14


      As all of these bills were discharged in bankruptcy filed by
      Donald Seeley, the Court hereby reduces the restitution
      ordered to Donald Seeley by $57,603.70, leaving a $0.00
      balance due.

                                        …

            Therefore, [Kalkbrenner]’s Post-Sentence Motions for
      Relief filed January 17, 2012, as well as [Kalkbrenner]’s Second
      Supplement to Post Sentence Motion filed April 3, 2012, are,
      hereby, GRANTED in part and DENIED in part. The Clerk of
      Courts is directed to amend the restitution ordered to reflect the
      $0.00 balance due to Donald Seeley, $43,784.99, to the Crime
      Victims Compensation Fund, for a total aggregate restitution
      order of $54,789.88. Additionally, the Clerk of Courts is directed
      to credit [Kalkbrenner] with $230.92 towards cost in this case.
      All other amounts contained in the Sentence Order of Court
      dated January 6, 2012, remain as previously set.

Order of Court, 6/18/2012, at 1-3 (emphases added). We now turn to the

merits of Kalkbrenner’s claims.

      In his first argument, Kalkbrenner complains the court committed an

error of law when it ordered him to pay restitution to several named victims

and   to   the   Pennsylvania   Crime    Victims   Compensation   Fund.    See

Kalkbrenner’s Brief at 14.        Specifically, he asserts restitution was not

appropriate because there is “no direct link between the injuries suffered

and the sole criminal count for which [Kalkbrenner] was convicted.”        Id.

Relying on Commonwealth v. Cooper, 466 A.2d 195 (Pa. Super. 1983),

Kalkbrenner argues that since he was found guilty of DUI, and not guilty of




                                        -7-
J-A16016-14


aggravated assault by vehicle,4 the jury did not “find any negligence

attributable to” him. Id. at 17.5 Moreover, he states, “The jury clearly saw

that what happened was an accident, caused by deplorable road conditions

and fate. [Kalkbrenner] did not cause the accident and was found not guilty

of causing the accident.”          Id. at 17-18 (some capitalization removed).

Additionally, Kalkbrenner argues that because several of the victims were

not wearing seatbelts when the accident occurred, the court should

apportion the damages due to the fact that “criminal misconduct was not

[the] sole cause of the victims’ injuries.” Id. at 18.

       With respect to Kalkbrenner’s causation argument, his challenge

concerns the legality of the sentence because he assails the trial court’s

authority to impose restitution.

       In the context of criminal proceedings, an order of “restitution is
       not simply an award of damages, but, rather, a sentence.”
       Commonwealth v. C.L., 2008 PA Super 286, 963 A.2d 489,
       494 (Pa. Super. 2008) (citation omitted). An appeal from an
       order of restitution based upon a claim that a restitution order is
       unsupported by the record challenges the legality, rather than
       the discretionary aspects, of sentencing. Commonwealth v.
       Redman, 2004 PA Super 473, 864 A.2d 566, 569 (Pa. Super.
       2004), appeal denied, 583 Pa. 661, 875 A.2d 1074 (2005).
       “[T]he determination as to whether the trial court imposed an
       illegal sentence is a question of law; our standard of review in
       cases     dealing   with   questions    of   law    is    plenary.”

____________________________________________


4
    75 Pa.C.S. § 3735.1.
5
   It merits mention that at Kalkbrenner’s second trial, the only charge on
the verdict slip for jury deliberation was DUI. See Verdict, 11/17/2011.



                                           -8-
J-A16016-14


     Commonwealth v. Hughes, 2009 PA Super 240, 986 A.2d
     159, 160 (Pa. Super. 2009) (citation omitted).

Commonwealth v. Atanasio, 997 A.2d 1181, 1182-1183 (Pa. Super.

2010).

     “In Pennsylvania restitution can be imposed either as a condition of

probation or as a direct sentence.”    Commonwealth v. Fuqua, 407 A.2d

24, 26 (Pa. Super. 1979) (footnote omitted). Here, the order of restitution

was a direct sentence imposed by the authority of Section 1106 of the

Pennsylvania Crimes Code and Section 9721 of the Pennsylvania Sentencing

Code. See Order of Court, 6/18/2012, at 1.

     Section 1106 provides, in pertinent part:

     (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.

18 Pa.C.S. § 1106(a). Section 9721 states, in relevant part:

     (c) Mandatory restitution. -- In addition to the alternatives set
     forth in subsection (a) of this section the court shall order the
     defendant to compensate the victim of his criminal conduct for
     the damage or injury that he sustained. For purposes of this
     subsection, the term “victim” shall be as defined in section 479.1
     of the act of April 9, 1929 (P.L.177, No.175), known as The
     Administrative Code of 1929.

42 Pa.C.S. § 9721(c).

     The Pennsylvania Supreme Court has previously held Section 1106 “is

clear on its face and applies only for those crimes to property or person

                                      -9-
J-A16016-14


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 accountable.”

Commonwealth v. Barger, 956 A.2d 458, 465 (Pa. Super. 2008), citing

Commonwealth v. Harner, 617 A.2d 702, 704 (Pa. 1992).               Therefore,

restitution is a proper sentence only if there is a “direct causal connection

between the crime and the loss.” Commonwealth v. Harriott, 919 A.2d

234, 238 (Pa. Super. 2007) (citation omitted), appeal denied, 934 A.2d 72

(Pa. 2007).   See also Commonwealth v. Oree, 911 A.2d 169, 174 (Pa.

Super. 2006) (courts utilize a "but for" test in calculating damages which

occurred as a direct result of the crime), appeal denied, 918 A.2d 744 (Pa.

2007).

      Contrary to Kalkbrenner’s argument, this Court has made clear that

restitution for a DUI-alcohol conviction may be imposed as part of the

judgment of sentence where there is an explicit finding by the trial court that

damage occurred as the direct result of the crime of DUI-alcohol related or

where the record clearly implies that the damage occurred as a direct result

of the crime of DUI. See Fuqua, supra; Commonwealth v. Walker, 666

A.2d 301 (Pa. Super. 1995), appeal denied, 680 A.2d 1161 (Pa. 1996).

      In Fuqua, the defendant lost control of his car and crashed into the

victim’s house. He was found guilty of DUI, following a non-jury trial during

which he denied being intoxicated and testified that he had not crashed into

the home. The judge convicted the defendant of DUI and sentenced him to


                                    - 10 -
J-A16016-14


one year of probation. The judge also ordered him to make restitution to

the victim. Fuqua, 407 A.2d at 25. The defendant argued the record did

not support the order of restitution because the court failed to make a

specific finding that the property damage sustained by the victim was a

direct result of the defendant’s crime of DUI. Id. at 27-28. On appeal, this

Court affirmed the sentence, holding:

      Our own review of the record discloses that the court below did
      indeed fail to make such a finding on the record. Normally,
      where the lower court fails to support its sentence on the record,
      we will vacate the sentence and remand for resentencing. See
      Commonwealth v. Riggins, supra; Commonwealth v.
      Wertz, 252 Pa.Super. 584, 384 A.2d 933 (1978). In this case,
      however, the evidence is clear that the order of restitution was
      for the damages to the [victim’s] house; the lower court did find
      that [the defendant] did in fact collide with the house and cause
      the damage to the front porch and foundation. While the lower
      court should have specifically found that this damage was a
      direct result of [the defendant]’s crime of driving while under the
      influence, to remand for resentencing would be a useless
      procedural     exercise.   The    missing    specific   finding   is
      unmistakeably [sic] implied in the findings that the court did
      make.

Id. at 28.

      In Walker, the defendant pled guilty to two counts of DUI.             The

charges arose from a two-car collision in which two occupants of the other

vehicle were severely injured. The defendant was ordered to pay restitution

as a part of his sentence.    On appeal, he argued, in pertinent part, that

“restitution is not proper where there is insufficient evidence that the

victim's injuries directly resulted from the crime[.]”   Walker, 666 A.2d at

307. Finding Fuqua controlling, a panel of this Court concluded:

                                     - 11 -
J-A16016-14


      Although the evidence relied upon by the trial court did not arise
      during trial because of [the defendant]’s guilty plea,
      nevertheless, in language quoted supra at the sentencing
      hearing, the court found that [the defendant]’s driving while
      under the influence was a substantial factor in causing the
      injuries to the victims. Just as this finding of causation supports
      the sentencing court’s decision to apply the enhanced sentencing
      guideline, it likewise supports the court’s decision to impose
      restitution.

Id. at 309 (citation omitted).

      Turning to the present matter, the trial court stated in its June 18,

2012 amended sentencing order, “Under 18 Pa.C.S.A. § 1106 and 42

Pa.C.S.A. § 9721, the Court is mandated to impose restitution upon a

defendant convicted for a crime that results in the victim sustaining injury

from the defendant’s criminal act.    Therefore, our Sentence and Order of

Court dated January 6, 2012, remains in effect[.]”           Order of Court,

6/18/2012, at 1. In its Rule 1925(a) opinion, the court further explained:

             We note that we addressed the issue of imposing
      restitution upon [Kalkbrenner] … in our Opinion and Order of
      Court dated January 8, 2009. We are cognizant of the fact that
      [Kalkbrenner] was awarded a retrial, yet the jury verdict on
      November 17, 2011, in the retrial resulted in a verdict of guilty
      as to Driving Under the Influence of Alcohol/Incapable of Safe
      Driving, in violation of 75 Pa.C.S.A. § 3731(a)(1), a
      Misdemeanor 2. The court’s rationale in awarding restitution
      remains the same as it was when we set forth our reasoning in
      our Opinion of January 8, 2009:

            [Kalkbrenner] argues that the [c]ourt improperly
            imposed restitution for the injuries he caused to
            seven victims in the van he collided with in the
            oncoming lane of traffic ….     Restitution may be
            imposed by the sentencing court where the
            defendant is convicted of DUI – General Impairment
            and it is impossible to separate the defendant’s

                                     - 12 -
J-A16016-14


            drunk driving from the injuries resulting to the
            victims.     Commonwealth v. Walker, 446 Pa.
            Super. 43, 55-56, 666 A.2d 301, 307-308 (1995)
            (citing Commonwealth v. Fuqua, 267 Pa. Super.
            504, 407 A.2d 24 (1979)).           [Kalkbrenner] was
            convicted of DUI – General Impairment, and the
            facts of this case show that [Kalkbrenner]’s impaired
            condition was a significant and substantial cause of
            the property damages and personal injuries to the
            innocent victims in this case.[10] …

      Commonwealth v. Kalkbrenner at C.R. No. 619-2003, Order
      and Opinion of Court, dated January 8, 2009.
            10
                While we quote from our Opinion dated January
            8, 2009, denying [Kalkbrenner]’s Post-Sentence
            Motions, we find it instrumental to note it was
            adduced during the retrial that [Kalkbrenner]’s
            judgment was affected due to his consumption of
            alcohol and was a contributory factor to his losing
            control of his vehicle and the ensuing crash. See
            N.T., Jury Trial Day 2, Motion for Mistrial by
            Defendant and Curative Instruction, pp. 1-3.

      We find no fault in our prior rationale; in fact, that same
      rationale was at work in our Sentence and Order of Court dated
      January 6, 2012, following the retrial.

Trial Court Opinion, 11/13/2012, at 5-6.

      We agree with the court’s analysis and its finding that Fuqua and

Walker are applicable to the present matter.         Although Kalkbrenner was

acquitted of aggravated assault by vehicle while DUI, the jury did convict

him of DUI (incapable of safe driving).       Furthermore, the court found him

guilty of careless driving, driving a vehicle at safe speed, and failure to keep

right. In ordering restitution, even though the trial court’s sentencing order

does not include an explicit finding that the injuries to the victims were the


                                     - 13 -
J-A16016-14


direct result of Kalkbrenner’s DUI conviction, the court explained in its Rule

1925(a) opinion that Kalkbrenner’s act of DUI could not be separated from

the injuries suffered by the multiple victims.6 See Fuqua. Therefore, we

determine the court did not err in concluding that but-for Kalkbrenner’s

actions on the night in question, the damage to the other vehicle, and the

injuries suffered by the victims, would not have occurred.         See Fuqua,

supra; Walker, supra.

       Furthermore, we reject Kalkbrenner’s reliance on Cooper, supra, as it

is distinguishable from the present matter.        In Cooper, the appellant was

driving when he struck and killed a young boy riding a bicycle. Cooper, 466

A.2d at 196. The appellant pled guilty to a lesser included offense of leaving


____________________________________________


6
   We note that while the certified record contains notes of testimony from
the second day of trial, see N.T., 11/15/2011 (motion for mistrial by
defense and curative instruction), it does not include trial transcripts from
the first day of trial on November 14, 2011 and the last day on November
17, 2011.      Based on this Court’s inquiry, these transcripts were not
requested by counsel and therefore, they were not made available at the
trial court level. “[W]e can only repeat the well established principle that
‘our review is limited to those facts which are contained in the certified
record’ and what is not contained in the certified record ‘does not exist for
purposes of our review.’” Commonwealth v. B.D.G., 959 A.2d 362, 372
(Pa. Super. 2008), quoting Commonwealth v. O’Black, 897 A.2d 1234,
1240 (Pa. Super. 2006). Moreover, “it is the appellant’s burden to ensure
that the certified record is complete.” Commonwealth v. Landis, 89 A.3d
694, 698 n.5 (Pa. Super. 2014), citing Pa.R.A.P. 1921.             Therefore,
Kalkbrenner has waived any challenge to the court’s factual findings. See
B.D.G., 959 A.2d at 373 (claim waived for failure to include relevant
document in certified record).




                                          - 14 -
J-A16016-14


the scene of a fatal accident.7 A panel of this Court vacated the restitution

order because “the death of the victim stemmed from the collision itself, not

appellant’s act of leaving the scene of the accident, and appellant was not

charged or convicted of any crime holding him criminally responsible for

having struck and killed the victim.”          Cooper, 466 A.2d at 197.   As this

Court explained in Walker, supra:

       Support for the Cooper holding is found in [Commonwealth v.
       Harner, 617 A.2d 702 (Pa. 1992)], a case in which a wife was
       ordered to pay restitution to her ex-husband for expenses he
       incurred tracking down and reclaiming his children, after wife
       violated a custody order and removed the children from her ex-
       husband’s home. In finding that wife could not be ordered to
       pay restitution, the Harner court stated:

          Because this section [§ 1106] imposes restitution as part
          of a sentence, its penal character must not be overlooked
          and it would seem to us that restitution can be permitted
          under 18 Pa.C.S. § 1106 only as to losses for which the
          defendant has been held criminally accountable. This is in
          keeping with the well established principle that criminal
          statutes must be strictly construed....

          In fact, the very words of the statute provide that it is
          applicable only upon conviction for a 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. No
          such crime has been committed here by Appellant. Unless
          the incidental costs Mr. Harner expended to locate his
          children have been made part of a criminal proceeding for
          which Appellant was convicted, it seems dubious to us that
          due process would permit a court to determine that these
          are losses that can be passed on to Appellant, as a

____________________________________________


7
    See 75 Pa.C.S. § 3744.



                                          - 15 -
J-A16016-14


          sentence, under a theory that they flowed as a direct
          result of the crime for which Appellant was convicted.

          ... [The Superior Court and the Commonwealth argue for]
          a strained reading of an otherwise straightforward statute
          which is directed at giving the trial court the ability to
          sentence a defendant for the damage caused by him in the
          commission of a crime. Thus, where one steals an
          automobile valued at $15,000 and during a high
          speed chase is involved in a wreck which damages
          the auto, reducing its value to $5,000, it would be
          appropriate, in addition to incarceration, upon
          conviction for theft, to require the defendant to pay
          the victim $10,000 for the loss of value to the auto.
          It is impossible to separate the actions of the theft
          from the damage done to the car and in this sense
          the decrease in value to the car is a direct result of
          the crime.

Walker, 666 A.2d at 309-310 (some citations omitted; emphasis added).

     Both Cooper and Harner are distinguishable from the present matter

as the defendants could not be considered criminally responsible for the

identified harm based on their specific convictions. Rather, the facts in the

present matter are analogous to the high speed wreck example set forth in

Harner.    It is impossible to separate Kalkbrenner’s act of driving under

influence from the damage done during the accident. Accordingly, we find

no error in the court’s restitution sentence as the record supports a finding

that there was a causal connection between the crimes Kalkbrenner was

convicted of and the resulting damages to the victims.

     With respect to Kalkbrenner’s apportionment argument, we note that

as a general rule, challenges concerning the amount of restitution awarded

involve the discretionary aspects of sentencing. In the Interest of M.W.,

                                    - 16 -
J-A16016-14


725 A.2d 729, 731, n.4 (Pa. 1999).           It appears that apportionment in

restitution matters implicates the discretionary aspects of sentencing since it

concerns the amount, rather than the court’s authority to impose such a

sentence.

      “Sentencing is a matter vested in the sound discretion of the

sentencing judge, and a sentence will not be disturbed on appeal absent a

manifest abuse of discretion.” Commonwealth v. Sheller, 961 A.2d 187,

190 (Pa. Super. 2008), appeal denied, 980 A.2d 607 (Pa. 2009).              “A

challenge to the discretionary aspects of a sentence must be considered a

petition for permission to appeal, as the right to pursue such a claim is not

absolute.” Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa. Super. 2007)

(citation omitted). To reach the merits of a discretionary issue, this Court

must determine whether:

            We conduct a four-part analysis to determine:           (1)
      whether appellant has filed a timely notice of appeal, see
      Pa.R.A.P. 902 and 903; (2) whether the issue was properly
      preserved at sentencing or in a motion to reconsider and modify
      sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s brief
      has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
      substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (internal

quotation marks, citations, and modifications omitted).

      Here, a review of the record reveals that Kalkbrenner did not raise the

issue in either his January 17, 2012 post-sentence motion or April 3, 2012

second supplement to post sentence motions, or at the April 30, 2012,

                                    - 17 -
J-A16016-14


restitution hearing.8     Moreover, he did not include a Rule 2119(f) concise

statement in his brief. Therefore, the issue has been waived for appellate

purposes. See Pa.R.A.P. 302(a) (stating that issues not raised in the lower

court are waived and cannot be raised for the first time on appeal).

       Next, Kalkbrenner argues the court erred in awarding restitution

because “[e]very individual who was awarded restitution signed a release.”

Kalkbrenner’s Brief at 19. Moreover, he contends the court erred in relying

on Commonwealth v. Pleger, 934 A.2d 715 (Pa. Super. 2007), which he

states “was wrongly decided and unworthy of stare decisis.” Id. To support

this argument, Kalkbrenner points to the following alleged errors in Pleger:

(1) the application of a civil release in a criminal proceeding was not the

main issue in the case, and therefore, the parties and the trial court did not

properly analyze the issue; (2) the decision cited no Pennsylvania precedent

to support its conclusion; (3) the court improperly held that a restitution

order did not create a creditor-debtor relationship between the victim and


____________________________________________


8
    It bears remarking that Kalkbrenner did raise the same issue in his
September 11, 2008, post-sentence motion. However, he did not renew this
argument after the matter was remanded by a panel of this Court for a new
trial, and the trial court imposed its January 6, 2012 judgment of sentence,
and June 18, 2012, amended sentence. See Commonwealth v. Levy, 83
A.3d 457, 467 (Pa. Super. 2013) (defendant waived issues where he did not
raise any of the arguments regarding the trial court’s exercise of its
discretion in granting the Commonwealth’s motion or in fashioning his
second sentence).




                                          - 18 -
J-A16016-14


the offender because statutory authority9 did create such a relationship; and

(4) the court failed to consider the ramifications and injustices which will

result by ignoring civil releases.             Id. at 20-22.      Lastly, Kalkbrenner

complains that even if Pleger was properly decided, it cannot be

retroactively applied to the releases at issue, which were executed in 2003

before Pleger was decided in 2007. Id. at 23-25.

       We disagree.        First, we emphasize the following:             An order of

restitution   “constitutes     a   ‘constructive   tool[]   in   the   criminal   justice

jurisprudence.’”     Fuqua, 407 A.2d at 25 (citation omitted).            “The primary

purpose of restitution is rehabilitation of the offender by impressing upon

him that his criminal conduct caused the victim’s personal injury and that it

is his responsibility to repair the injury as far as possible.” Commonwealth

v. Keenan, 853 A.2d 381, 382-383 (Pa. Super. 2004) (citation omitted).

“In determining the amount of restitution to be ordered, a sentencing court

____________________________________________


9
  Specifically, 42 Pa.C.S. § 9728(b)(1), which sets forth the procedure for
collecting restitution, as follows:

       (1) The county clerk of courts shall, upon sentencing, pretrial
       disposition or other order, transmit to the prothonotary certified
       copies of all judgments for restitution, reparation, fees, costs,
       fines and penalties which, in the aggregate, exceed $ 1,000, and
       it shall be the duty of each prothonotary to enter and docket the
       same of record in his office and to index the same as judgments
       are indexed, without requiring the payment of costs as a
       condition precedent to the entry thereof.

Id.



                                          - 19 -
J-A16016-14


must consider three factors: the loss or damage directly caused by the

defendant’s criminal act, the amount of restitution he can afford to pay, and

the method by which he should pay it.”             Commonwealth v. Reed, 543

A.2d 587, 589 (Pa. Super. 1988) (citation omitted). As such, restitution is

focused on the defendant, and the victim is secondary.10

       Second, to the extent Kalkbrenner asks this Court to ignore Pleger or

overrule the case, we cannot do so. See Commonwealth v. Prout, 814

A.2d 693, 695 n.2 (Pa. Super. 2002) (per curiam) (stating Superior Court is

constitutionally bound by prior Superior Court panel decisions). Moreover,

with respect to his retroactivity issue, we note “the general rule in

Pennsylvania is to apply the law in effect at the time of the appellate

decision.”   Commonwealth v. Housman, 986 A.2d 822, 840 (Pa. 2009).

Here, Kalkbrenner asks this Court to look back to when the parties signed

the release in 2003 rather than when the trial court imposed the sentence of

restitution in 2012. We decline to so.11 Therefore, we turn our attention to

the trial court’s application of Pleger.


____________________________________________


10
    The sentencing judge went to great lengths, both at the sentencing
hearing and the subsequent restitution hearing to determine the appropriate
amount of restitution and to insure there was no duplication based on
amounts paid from The Crime Victims Compensation Fund.
11
   Furthermore, we note Section 1106 provides, in relevant part: “The court
shall not reduce a restitution award by any amount that the victim has
received from an insurance company but shall order the defendant to pay
(Footnote Continued Next Page)


                                          - 20 -
J-A16016-14


      In Pleger, prior to sentencing, the victim accepted a settlement from

the defendant, through his insurance carrier. At sentencing, the trial court

found the victim signed a general release, relieving the defendant of all

claims. The “court essentially reasoned that, because of the settlement and

release, the court could not consider ordering restitution.” Pleger, 934 A.2d

at 719. On appeal, a panel this Court noted that “[i]t is true that restitution

helps the victim, but this fact is secondary to the reality that restitution is an

aspect of sentencing imposed by a court on an offender in order to facilitate

the administration of criminal justice.”            Id. at 720.   Moreover, this Court

determined “[t]he victim could no more release [the defendant] from a

potential sentence        of restitution than from a potential sentence of

incarceration,” and concluded that “in determining what restitution was to be

imposed as part of [the defendant’s] sentence, the general release and the

settlement amount were irrelevant.” Id. The panel held:

      [T]he court was required, pursuant to the aforesaid statutes and
      caselaw, to consider fully the request for restitution presented by
      the district attorney’s office, to evaluate that request in a
      manner consistent with 18 Pa.C.S.A. § 1106 and 42 Pa.C.S.A. §
      9721(c), to arrive at the full amount of restitution due, and then
      to issue an appropriate order requiring full restitution as an
      aspect of [the defendant]’s sentence.

Id. at 720-721.


                       _______________________
(Footnote Continued)

any restitution ordered for loss previously compensated by an insurance
company to the insurance company.” 18 Pa.C.S. § 1106(c)(1)(i).



                                           - 21 -
J-A16016-14


      Here, we conclude that, in accordance with Pleger, which we are

bound by, the trial court did not err in failing to apply the release

agreements between the victims and Kalkbrenner when imposing the order

of restitution.   See Trial Court Opinion, 11/13/2012, at 7.       Accordingly,

Kalkbrenner’s second argument lacks merit.

      In his third argument, Kalkbrenner baldly asserts the court erred in

ordering, as part of his sentencing, that he pay for certain costs of

prosecution, specifically, the full price of gasoline and travel expenses of its

witnesses. Kalkbrenner’s Brief at 26. Kalkbrenner states that pursuant to

42 Pa.C.S. § 5903(c), a witness may only be compensated seven cents per

mile. Id. Moreover, he contends Section 5903(c) should be interpreted to

limit the amount a Commonwealth witness may be compensated for travel

expenses. Id.

      Initially, we note that 16 P.S. § 1403 governs the Commonwealth’s

ability to recover the expenses of a successful prosecution from a defendant.

It provides:

      § 1403. Expenses incurred by district attorney

      All necessary expenses incurred by the district attorney or his
      assistants or any office directed by him in the investigation of
      crime and the apprehension and prosecution of persons charged
      with or suspected of the commission of crime, upon approval
      thereof by the district attorney and the court, shall be paid by
      the county from the general funds of the county. In any case
      where a defendant is convicted and sentenced to pay the costs
      of prosecution and trial, the expenses of the district attorney in
      connection with such prosecution shall be considered a part of
      the costs of the case and be paid by the defendant.

                                     - 22 -
J-A16016-14



16 P.S. § 1403.12

       Section 5903, upon which Kalkbrenner relies, is limited in scope to “a

witness served with a subpoena to testify before any government unit13

(except the minor judiciary) or before the Philadelphia Municipal Court.” 42

Pa.C.S. § 5903(a). Moreover, it states those applicable witnesses shall be

paid $5.00 per day and “shall be paid mileage at the rate of 7 cent(s) for

each mile circular actually and necessarily travelled between the place

named in the subpoena and the place of residence of the witness.”          42

Pa.C.S. § 5903(b-c).

       Kalkbrenner’s argument is flawed for numerous reasons. First, he fails

to explain how Section 5903 interrelates to Section 1403 in determining

costs of prosecution or if it ever applies to judicial proceedings.14 Second,

he does not identify which, if any, witnesses were subpoenaed that would

necessitate review pursuant to Section 5903.       Third, he does not point to

which cost in the Commonwealth’s bill of expenses were attributable to

those witnesses. Moreover, as the trial court noted:
____________________________________________


12
    “The purpose of the statute is to recoup the costs of trial where a jury
finds the defendant guilty beyond a reasonable doubt[.]” Commonwealth
v. Coder, 415 A.2d 406, 408 (Pa. 1980).
13
     The statute does not define “government unit.”
14
    This is the first time Kalkbrenner raises the argument concerning the
application of Section 5903. See Pa.R.A.P. 302(a).




                                          - 23 -
J-A16016-14


       We mention … that [Kalkbrenner] claims as error the costs
       imposed on him. He cites as an example of such costs the bill
       submitted by Dr. Eric Vey.[15] We note that we previously
       reduced the billed amount from Dr. Vey in our Order of Court
       dated September 17, 2008, and we see no need to disturb our
       ruling in that matter or the other costs allocated to
       [Kalkbrenner], as previously set out in our Orders of September
       17, 2008[16] and June 18, 2012,[17] respectively.

See Trial Court Opinion, 11/13/2012, at 7.             Accordingly, we are not

persuaded by Kalkbrenner’s argument and conclude the issue lacks merit.

       In Kalkbrenner’s fourth claim, he contends the court erred in failing to

dismiss his three summary convictions for careless driving, driving at safe

speed, and failure to keep right because the crimes were not filed within 30

days as required by 42 Pa.C.S. § 5553(a). He notes the offenses occurred

on February 10, 2003, and the police criminal complaint was filed past that

time limit on May 1, 2003. Moreover, Kalkbrenner complains the offenses
____________________________________________


15
     Kalkbrenner did not identify Dr. Vey in his appellate brief.
16
   In the September 17, 2008, order, the court granted certain costs and
declined to assess certain costs as follows: (1) Dr. Vey was entitled to
$2,500.00; (2) Craig Westover was entitled to $250.00 for service of
subpoenas; (3) Dr. Gailey was not entitled to recover a fee; (4) Dr. Woods
was not entitled to recover a fee; (5) all other costs listed remained. See
Order of Court, 9/17/2008, at 1. These adjustments were made at the
request of Kalkbrenner’s counsel at the sentencing hearing. See N.T.,
9/2/2008, at 61, 63-64.
17
    In the June 18, 2012, order, the court stated, in pertinent part: (1)
because Kalkbrenner was successful in his appeal at Docket Number 182
WDA 2009, he was entitled to allowable costs, totaling $230.92, pursuant to
Pa.R.A.P. 2741(3), 2742, 2743, and 2771; and (2) the reduction in the billed
amount from Dr. Vey to $2,500.00 remained.            See Order of Court,
6/18/2012, at 2.



                                          - 24 -
J-A16016-14


should have been dismissed because they were not disposed of within three

years as required by 42 Pa.C.S. § 5553(e).

     Section 5553 states, in pertinent part:

     (a) General rule. --Except as provided in subsection (b) or (c),
     proceedings for summary offenses under Title 75 (relating to
     vehicles) must be commenced within 30 days after the
     commission of the alleged offense or within 30 days after the
     discovery of the commission of the offense or the identity of the
     offender, whichever is later, and not thereafter.

                                      …

     (e) Disposition of proceedings within three years. --No
     proceedings shall be held or action taken pursuant to a summary
     offense under Title 75 subsequent to three years after the
     commission of the offense.

42 Pa.C.S. § 5553 (a, e).

     Here, the trial court found the following:

     As we stated in our Opinion of Court dated January 8, 2009,
     disposing of [Kalkbrenner]’s Post Sentence Motions for Relief:

        … [B]ased upon the law at the time of these offenses,
        February 10, 2003, these summary offenses were properly
        joined in this case, even though they were filed more than
        thirty days after their occurrence. In Commonwealth v.
        Kline, the court explained that [t]he Rules of Criminal
        Procedure for summary cases contemplate that ordinarily
        citations for summary offense will be issued by law
        enforcement officers and handed to the defendant at the
        time the offense [was] committed. [citation omitted].
        However, the rules also state that in cases which involve
        both summary offenses and “court cases” (i.e.,
        misdemeanor, felony, or murder charges), the summary
        offenses, if known at the time, “shall be charged in the
        same complaint as the higher offenses and shall be
        disposed of as part of the course case.” [citation omitted]




                                   - 25 -
J-A16016-14


       … In the present case, the Police Criminal Complaint, dated
       April 30, 2003, charges [Kalkbrenner] with all the
       summary offenses, along with the court cases. All of these
       charges were disposed of in the same case. Thus, the
       statute of limitations for the summary offense did not
       expire.

     Commonwealth v. Kalkbrenner at C.R. No. 619-2003, Order and
     Opinion of Court, dated       January 8, 2009       (quoting
     Commonwealth v. Kline, 592 A.2d 730 (Pa. Super. Ct. 1991) at
     fn. 1).

     We believe this adequately disposes of [Kalkbrenner]’s claim
     insofar as he asserts the summary offenses should have been
     dismissed for noncompliance [within] the thirty (30) day
     requirement.

            In a related claim, [Kalkbrenner] also asserts that the
     summary offenses necessitate dismissal for they were not fully
     disposed of within two years as required by 42 Pa.C.S.A. §
     5553(e) (“§ 5553”).11      However, [Kalkbrenner]’s position is
     untenable given the fact that this case has been the subject of
     prolific motion filings by [Kalkbrenner], as well as frequent
     appeals to Superior Court by both the Commonwealth and
     [Kalkbrenner] in this protracted case. This case has literally
     dragged on for more than nine years since summons were issued
     to [Kalkbrenner] on May 1, 2003, for the accident which
     occurred on February 10, 2003. Appeals to the Superior Court
     over various issues were taken on April 1, 2005,12 February 5,
     2009,13 and July 11, 2012.14 Pursuant to Pa.R.A.P. 1701(a),
     when an appeal is taken, neither the trial court or other
     government unit may proceed further in the matter under appeal
     until a decision has been made in the matter appealed of by the
     appellate court. [Kalkbrenner] asserts the summary offenses
     were not fully disposed of within the statutory timeframe under §
     5553, yet [Kalkbrenner] fails to take note of the lengthy
     appellate process that, more often than not, was due to appeals
     filed on his behalf. Thus, any action this court might have
     wanted to take to dispose of the summary offenses was stayed
     during the pendency of [Kalkbrenner]’s numerous appeals over
     the course of this protracted case pursuant to the Rules of
     Appellate Procedure. Thus, we find no merit to [Kalkbrenner]’s
     claim in this matter.


                                  - 26 -
J-A16016-14


        11
             The timeframe under 42 Pa.C.S.A. § 5553(e) was
        subsequently enlarged to three years, but we deal with the
        statutory scheme as it existed at the time of the
        commission of the offenses on February 10, 2003.
        12
           The Superior Court issued its decision on this appeal on
        December 29, 2005. Subsequently, the Superior Court
        denied a request for reargument or reconsideration filed on
        January 10, 2006 by the parties in their Order dated March
        10, 2006.    This decision was then appealed to the
        Supreme Court on August 4, 2006, which was ultimately
        denied by Supreme Court Order dated August 24, 2006.
        13
             This appeal was taken after the trial court imposed
        sentence on [Kalkbrenner] by Sentence and Order of Court
        dated September 2, 2008, and subsequent Post-Sentence
        Motions for Relief filed on September 11, 2008 were
        denied. The Superior Court then reversed and remanded
        for a new trial by Order dated November 3, 2010. At one
        point, the record reflects that the Supreme Court denied a
        Petition for Allowance of Appeal in a Per Curiam Order
        dated March 16, 2011.
        14
           This appeal was taken after the jury verdict of guilty on
        November 17, 2011, and the subsequent sentencing
        imposed by the court on January 6, 2012. Post Sentence
        Motions for Relief were filed, as well as Supplemental Post
        Sentence Motions, both of which were ultimately denied
        and which constitute the reason for the instant appeal.

Trial Court Opinion, 11/13/2012, at 8-9. After reviewing the relevant case

law and the record, we conclude the trial court’s analysis adequately

disposes of this issue and the court did not err in failing to dismiss

Kalkbrenner’s summary convictions. Accordingly, his fourth argument fails.

     Lastly, in his supplemental brief, Kalkbrenner asserts “the underlying

appeal is now moot as the two (2) year maximum sentence for the sole

offense the jury convicted [Kalkbrenner] of has been completely served.”


                                   - 27 -
J-A16016-14


Supplemental Brief for Kalkbrenner at 4. He relies on Commonwealth v.

Karth, 994 A.2d 606 (Pa. Super. 2010), and Southern Union Company v.

United States, 132 S.Ct. 2344 (U.S. 2012).                With respect to Karth, he

states the case “clearly limits the amount of time restitution may be

collected to the statutory maximum of the guilty offense.” Id. Therefore,

he contends that his maximum sentence has been completely served and

the ability to collect has ceased. Id. Kalkbrenner cites to Southern Union

for its holding that the rule of Apprendi v. New Jersey, 530 U.S. 466

(2000),18 in which the Sixth Amendment of the United States Constitution

“reserves to juries the determination of any fact, other than the fact of a

prior conviction, that increases a criminal defendant’s maximum potential

sentence,” applies to sentences of criminal fines.                Southern Union

Company, 132 S. Ct. at 2348-2349.                  Kalkbrenner states that costs and

restitution, like fines, are covered under Apprendi “since they are a

‘penalty’ and/or ‘punishment.’” We disagree.

       First, we find Kalkbrenner’s reliance on Karth is misplaced as that

case is distinguishable from the present matter. In Karth, restitution was

ordered as a condition of the defendant’s probation.                With respect to

whether restitution is imposed as a direct sentence or a condition of

probation, this Court noted:

____________________________________________


18
     See also Blakely v. Washington, 542 U.S. 296 (2004).



                                          - 28 -
J-A16016-14


     When incorporated as part of a defendant’s direct sentence,
     restitution is penal in nature and may be imposed without regard
     to the defendant’s ability to pay. See 18 Pa.C.S.A. §
     1106(c)(1)(i)(court shall consider restitution regardless of the
     current financial situation of the defendant). However, when
     imposed as a condition of probation, as it was here, its function
     is primarily rehabilitative and is intended to assist the defendant
     in leading a law-abiding life. 42 Pa.C.S.A. § 9754(b). In this
     context, restitution is to be imposed only “in an amount [the
     defendant] can afford to pay.” 42 Pa.C.S.A. § 9754(c)(8).

Karth, 994 A.2d at 607. Moreover, the Court opined:

            Although we can find no case in which we have been
     confronted with this precise issue, the question of whether
     restitution payments may extend beyond the expiration of the
     statutory maximum sentence on a given offense was addressed
     as a tangential matter in Commonwealth v. James, 2001 PA
     Super 88, 771 A.2d 33 (Pa. Super. 2001). In James, the matter
     on appeal involved the dismissal of a PCRA petition. Our Court’s
     opinion, however, discusses at length James’ direct appeal, in
     which we had addressed the issue of restitution.

           James had been sentenced to prison, followed by
     probation, and ordered to pay restitution in the amount of
     $1,500 per month, which was later reduced to $50 per week due
     to appellant’s limited earning capacity.              When James’
     probationary period was almost due to expire, the
     Commonwealth instituted violation proceedings, claiming that
     appellant had failed to satisfy his restitution obligation. The trial
     court found appellant to be in violation and sentenced him to an
     additional seven years’ probation and ordered him to pay the
     balance of his restitution in weekly payments of not less than
     $50.

           On direct appeal James argued that, because he had
     served his prison sentence, completed 10 years of probation and
     complied with the weekly payment schedule imposed by the
     court, there was no basis for finding a probation violation, even
     though the total amount of restitution had not been paid.

           In reviewing James’ sentence, the panel determined that
     the trial court had not specified whether restitution was a
     condition of probation or a component of James’ sentence. From

                                    - 29 -
J-A16016-14


     the facts and circumstances of the case, the panel concluded
     that the restitution was, in and of itself, a component of James’
     sentence and not a condition of probation.             It therefore
     concluded that, despite the expiration of James’ probation, the
     trial court had the “continuing power to monitor and enforce
     [the] sentence [of restitution]” until paid, as long as “the period
     of time during which the offender must pay does not exceed the
     maximum imprisonment to which he could have been
     sentenced.” James, supra at 36 & n.3 (emphasis added). The
     maximum to which James could have been sentenced was 52
     years’ imprisonment; thus, the court had the authority to
     enforce the restitution order until the expiration of the maximum
     possible sentence.

           We conclude that, if a court cannot enforce a restitution
     sentence past the statutory maximum date, it certainly lacks the
     authority to require that restitution imposed merely as a
     condition of probation be paid after the expiration of the
     statutory maximum date. In the case now before us, Karth was
     subject to a statutory maximum of 90 days’ imprisonment.
     Thus, at most, he could only be compelled to pay restitution over
     the course of those 90 days.

Karth, 994 A.2d at 609-610 (footnote omitted).

     We find both Karth and James are distinguishable from the present

matter.   Karth is distinct from this case as the main issue concerned the

imposition of restitution in a condition of probation, which is governed by

different provisions than a direct sentence of restitution.    James is not

applicable because a prior version of Section 1106(c)(2)(ii) was applied in

that case.    As noted in Commonwealth v. Griffiths, 15 A.3d 73 (Pa.

Super. 2010), prior to 1998, Section 1106 permitted a court to “order

restitution in a lump sum, by monthly installments or according to such

other schedule as it deems just, provided that the period of time during

which the offender is ordered to make restitution shall not exceed

                                   - 30 -
J-A16016-14


the maximum term of imprisonment to which the offender could have

been sentenced for the crime of which he was convicted.”           Id. at 78

(emphasis added). Section 1106 was then amended in 1998. See Act No.

121 of 1998 (P.L. 933, enacted December 3, 1998). The amended version

of Section 1106, provides, in relevant part:

      (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:


                                      …

      (ii) May order restitution in a lump sum, by monthly
      installments or according to such other schedule as it
      deems just.

18 Pa.C.S. § 1106(c)(2)(ii) (emphasis added).       Indeed, “[t]he amended

statute deleted the time limits originally contained in subsection (c)(2)(ii).

Now, an order of restitution is enforceable until paid. 18 Pa.C.S.A. §

1106(c)(2)(ii).” Griffiths, 15 A.3d at 78 (citations omitted).

      Turning to the present matter, the DUI incident occurred on February

10, 2003, and Kalkbrenner was sentenced on January 6, 2012. Therefore,

under either date, the amended version is applicable.      Accordingly, under

this version of the statute, the court properly retained authority to compel

payment beyond the maximum term of imprisonment and did not err in

doing so.

      With regard to Southern Union Company, we also find this case

distinguishable from the present matter as it concerns the imposition of fines

                                    - 31 -
J-A16016-14


and not restitution. Kalkbrenner fails to point to any case that has applied

Southern Union Company to restitution. Moreover, our research has not

uncovered any applicable precedent. Accordingly, we decline to explore the

matter because the South Union Company holding is not directly

applicable to restitution orders.    Therefore, Kalkbrenner’s final argument

fails.

         Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/14/2015




                                     - 32 -
