J-S67026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KELLY PATRICK MEENAN

                            Appellant                 No. 424 MDA 2015


                   Appeal from the Order February 17, 2015
                In the Court of Common Pleas of Centre County
              Criminal Division at No(s): CP-14-CR-0000704-2014


BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                            FILED MARCH 01, 2016

        Appellant, Kelly Patrick Meenan, appeals from the February 17, 2015

order denying his motion to amend restitution.      Meenan contends, among

other things, that the Commonwealth failed to present sufficient evidence of

causation between his conduct and injury suffered by the victim.         We

conclude that the explicit reasoning employed by the trial court in setting

restitution is erroneous, and, therefore, reverse and remand.

        On August 18, 2013, at approximately 1:45 a.m., an altercation

occurred at the Phyrst Bar and Restaurant in State College, during which

Meenan and his cousin, co-defendant Matthew Davidoff, jointly assaulted a



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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Bouncer.     As a result of the coordinated assault, the Bouncer sustained

injury to his knee.

       Meenan was subsequently charged with one count of simple assault

and one count of disorderly conduct.             He later entered a plea of nolo

contendere to the charge of simple assault, and was sentenced to serve two

years of probation and ordered to pay restitution for $41,103.95.1            At

sentencing, Meenan reserved the right to contest the restitution ordered.

See N.T., Sentencing, 7/17/14 at 5.

       On August 11, 2014, Meenan filed a “Petition to Amend Restitution

Order.” The trial judge conducted a hearing on Meenan’s petition, at which

the victim and several eyewitnesses testified.2 After the hearing, but before

a decision on the motion was rendered, the trial judge was removed from

the case. Another judge was appointed to resolve this issue. The substitute

judge—in his two paragraph discussion of the issue—observed that Meenan

had pled no contest to the charge of simple assault, and therefore had

“agreed to be treated as if he caused bodily injury to” the Bouncer, and

accordingly imposed restitution in the amount of $83,915.95.         This timely

appeal followed.


____________________________________________


1
  Meenan and co-defendant Davidoff were held jointly and severally liable for
the restitution award.
2
 The hearing was held jointly with co-defendant Davidoff. Both Meenan and
Davidoff also testified.



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      Meenan raises several arguments, but we address only one, as it is

dispositive. Meenan contends that the trial court erred in concluding that his

nolo contendere plea constituted manifest evidence that he had caused the

injury suffered by the Bouncer. See Appellant’s Brief at 33. We agree.

      Initially, we note that Meenan entered a nolo contendere plea to the

charge of simple assault.        In the criminal information filed by the

Commonwealth, Meenan was alleged to have “attempt[ed] to cause or

intentionally, knowingly or recklessly cause[d] bodily injury to another, to-

wit: [the Bouncer.]” Since the information includes the disjunctive “or,” and

Meenan explicitly reserved the right to contest restitution, there is no

indication in the record that Meenan had conceded that he was the cause of

the Bouncer’s injury.

      “[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.” Commonwealth v. Atanasio, 997 A.2d 1181,

1183 (Pa. Super. 2010) (citation omitted). A sentence of restitution must be

based upon statutory authority. See Commonwealth v. Harner, 617 A.2d

702, 704 (Pa. 1992). Mandatory restitution, as part of a defendant’s

sentence, is authorized by 18 Pa.C.S.A. § 1106 and states, in relevant part,

the following.

      § 1106. Restitution for injuries to person or property

      (a) General rule.—Upon conviction for any crime … wherein the
      victim suffered personal injury directly resulting from the


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

18 Pa.C.S.A. § 1106(a) (emphasis added). The statute evidences the intent

to provide the victim with the fullest compensation for his losses incurred as

a direct result of the defendant’s criminal conduct. See Commonwealth v.

Burwell, 58 A.3d 790, 794 (Pa. Super. 2012), appeal denied, 69 A.3d 242

(Pa. 2013); Commonwealth v. Stradley, 50 A.3d 769, 773 (Pa. Super.

2012). Furthermore, because of the explicit language in § 1106, restitution

is a proper sentence under that the Crimes Code only if there is a “direct

causal connection between the crime and the loss.” Commonwealth v.

Barger, 956 A.2d 458, 465 (Pa. Super. 2008) (en banc) (citation omitted).

      For instance, in Commonwealth v. Cooper, 466 A.2d 195 (Pa.

Super. 1983), we vacated the trial court’s order that required the defendant

to pay restitution for the costs of a victim’s death borne by the victim’s

family because the defendant only pled guilty to leaving the scene of the

accident and was not found criminally responsible for having struck the

victim. See 466 A.2d at 197. Similarly, in Harner our Supreme Court

vacated a restitution order based upon the value of a couch that was

allegedly lost due to conduct for which the defendant was not found

criminally responsible.

      “It is the Commonwealth’s burden of proving its entitlement to

restitution.” Atanasio, 997 A.2d at 1183 (citation omitted). “Although it is

mandatory under section 1106(c) to award full restitution, it is still

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necessary that the amount of the ‘full restitution’ be determined under the

adversarial system with considerations of due process.”        Id.   (citation

omitted).

      Here, the record is devoid of any indication that Meenan had conceded

that he was directly responsible for the injury suffered by the Bouncer. The

Commonwealth bore the burden of proving otherwise. It was error for the

trial court to decide the issue based solely upon Meenan’s plea of no contest.

We therefore reverse and remand.

      Order reversed. Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.

      Judge Platt joins the memorandum.

      Judge Bowes files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/1/2016




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